Mohan v. State

Brandon Mohan v. State of Maryland, No. 1853, Sept. Term 2021. Opinion filed on
November 30, 2022, by Berger, J.
STATUTORY INTERPRETATION - STATUTORY DEFINITION OF “PARENT”
UNDER CRIMINAL LAW SECTION 3-602(B)(1) - “DE FACTO” PARENT - IN LOCO
PARENTIS - STEPPARENT
The term “parent” under Md. Code (2002, 2021 Repl. Vol.), § 3-602(b)(1) of the Criminal
Law Article does not include individuals who are stepparents, “de facto” parents, or
individuals standing in loco parentis. The meaning of the term “parent” under Criminal
Law Section 3-602(b)(1) is limited to individuals who are either the biological or adoptive
parent of the child victim. A conviction for child sexual abuse cannot stand for an
individual who is charged as a “parent” pursuant to Criminal Law § 3-602(b)(1) but who
does not satisfy the statutory definition of “parent,” even if the individual could have been
convicted if charged as a “household member” or “family member” pursuant to Criminal
Law § 3-602(b)(2).
SENTENCING - REMAND FOR RESENTENCING AFTER VACATED SENTENCE
An appellate court has discretion to vacate and remand sentences where the sentencing
package has been disturbed by a decision to reverse a conviction. On remand, the trial
court may impose a sentence on any remaining counts up to the maximum incarceration
available at the time of the defendant’s crime. The trial court may not impose a sentence
that is more severe than the original aggregate sentence.
HEARSAY - PRIOR CONSISTENT STATEMENTS - MD. RULE 5-616(C)(2) - MD.
RULE 5-802.1(B)
A prior consistent statement that is inadmissible under Md. Rule 5-802.1(b) as an exception
to hearsay may be admissible as nonhearsay to bolster a witness’s credibility under Md.
Rule 5-616(c)(2). A party opens the door to admission of prior consistent statements under
Md. Rule 5-616(c)(2) when impeaching a witness’s credibility in either an opening
statement or on cross examination. A prior consistent statement under Md. Rule
5-616(c)(2) must be consistent with the witness’s present testimony and detract from or
logically rebut the impeachment.
Circuit Court for Wicomico County
Case No. C-22-CR-20-000497
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1853
September Term, 2021
______________________________________
BRANDON MOHAN
v.
STATE OF MARYLAND
______________________________________
Berger,
Friedman,
Harrell, Glenn T., Jr.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Majority Opinion by Berger, J.
Concurrence by Friedman, J.
______________________________________
Filed: November 30, 2022
Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.
2022-11-30 12:24-05:00
Gregory Hilton, Clerk
Appellant, Brandon Mohan, was charged in the Circuit Court for Wicomico County
with child sexual abuse, two counts of third-degree sex offense, two counts of fourth-
degree sex offense, and two counts of second-degree assault. The State charged Mohan
with committing sexual abuse of a minor, specifically as a “parent.” The jury convicted
Mohan of child sexual abuse, one count of third-degree sex offense, one count of fourth-
degree sex offense, and one count of second-degree assault. The circuit court sentenced
Mohan to twenty-five years’ incarceration for the child sexual abuse offense, and ten years
consecutive for the third-degree sex offense, but the court suspended the sentence for third-
degree sex offense in favor of a five-year period of probation and lifetime registration as a
sex offender.
Mohan presents two questions for our review,1 which we have rephrased, for clarity,
as follows:
I. Whether the circuit court erred in concluding Mohan
was a “parent” under CR § 3-602(b)(1).
II. Whether the circuit court erred in admitting certain
witness testimony as prior consistent statements.
For the reasons explained herein, we shall hold the circuit court erred in concluding
Mohan was a “parent” as contemplated by Md. Code (2002, 2021 Repl. Vol.), § 3-
602(b)(1) of the Criminal Law Article (“CR”) (hereinafter also referred to as “the criminal
1
Mohan’s original questions presented are as follows:
1. Was the evidence insufficient to sustain Appellant’s
conviction for child sexual abuse?
2. Did the court err in admitting hearsay evidence?
statute”). We shall further hold the circuit court did not err in admitting certain witness
testimony.
FACTUAL AND PROCEDURAL HISTORY
The underlying facts of Mohan’s convictions are not in dispute. Accordingly, we
address only those facts essential to our review. Furthermore, to protect the privacy of the
witnesses and the victim, certain individuals will only be identified by first name or initial.
In 2016, Mohan began a relationship with Haley. At the onset of their relationship,
Haley was -- and still is -- the mother to a one-and-a-half-year-old girl, hereinafter referred
to as “C.” Mohan and Haley were later married in 2017, and then proceeded to live
together -- along with C -- in a mobile home in Salisbury, Maryland from 2018 to 2020.
In August 2020, C disclosed to Haley that, on two separate occasions, Mohan put
his penis on her vagina and/or told her to touch his penis. According to Haley’s testimony
at trial, Mohan denied these incidents occurred when she confronted him. Haley further
testified that C refuted Mohan’s denial. Haley further testified that Mohan ultimately
admitted to touching C with his penis and/or having C touch his penis.
The State charged Mohan with various sex abuse offenses including a charge for the
sexual abuse of a minor under CR § 3-602(b)(1). The Statement of Charges filed on
August 30, 2020, and the Criminal Information filed on October 21, 2020, provided in
relevant part:
STATEMENT OF CHARGES
UPON THE FACTS CONTAINED IN APPLICATION OF
Officer: SCHULTZ, DET IT IS FORMALLY CHARGED
2
THAT MOHAN, BRANDON LEE at the dates, times and
locations specified below:
006 10322 CR 3 602 ((b)(1)) 25Y
. . . did cause sexual abuse to JUVENILE FEMALE, a
minor, the defendant being said child’s parent.
***
Count 1
THAT BRANDON LEE MOHAN, between the lst day of
June, 2020 and the 30th day of August, 2020, in Wicomico
County, State of Maryland, did cause sexual abuse to [C], [a]
minor, the defendant being said child’s parent . . . CR:3:602
(b)(1).
In both the Statement of Charges and the Criminal Information, the State specified
that Mohan committed the alleged child sexual abuse as a “parent” of C.2 At the close of
the State’s case -- with respect to Count 1 for child sexual abuse -- Mohan moved for
judgment of acquittal. Mohan argued there was insufficient evidence to convict him as a
“parent” of C, and further, he was not a “parent” under the criminal statute because he was
neither C’s biological nor adoptive parent.
The trial judge denied Mohan’s motion and held he was a “parent” under the
criminal statute. Specifically, the circuit court judge found Mohan was a “parent” under
CR § 3-602(b)(1) because: (1) he was married to C’s mother at the time of the alleged
abuse and acted as a “live-in” step-parent; (2) he was a de facto parent; and (3) he stood in
loco parentis to C. After Mohan testified and the State presented its rebuttal, Mohan
2
As discussed in more detail below, the State charged, tried, and convicted Mohan
under CR § 3-602(b)(1), specifically and only as a “parent.”
3
renewed his motion for acquittal. The circuit court denied Mohan’s motion, finding there
was sufficient evidence to convict him as a “parent” under CR § 3-602(b)(1).
Before submitting the case to the jury, the circuit court judge instructed that to find
Mohan guilty of child sexual abuse, the State must prove: (1) that Mohan sexually abused
C by sexual offense or sexual exploitation; (2) at the time of the abuse C was under 18
years of age; and (3) at the time of the abuse Mohan was a parent of C. The jury convicted
Mohan of child sexual abuse, one count of third-degree sex offense, one count of fourth-
degree sex offense, and one count of second-degree assault. The trial judge sentenced
Mohan to twenty-five years’ incarceration for the child sexual abuse offense, and ten years
consecutive for the third-degree sex offense. The trial court fully suspended the sentence
for the third-degree sex offense in favor of a five-year period of probation and lifetime
registration as a sex offender. Mohan’s convictions for fourth-degree sexual offense and
second-degree assault merged for sentencing with his conviction for third-degree sexual
offense. This timely appeal followed.
DISCUSSION
Standard of Review
When reviewing the sufficiency of the evidence to sustain a criminal conviction we
must determine “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Our review
is made without deference to the legal reasoning of the trial judge, and instead, we will
defer to the finder of fact and to “any reasonable inferences a jury could have drawn in
4
reaching its verdict.” Purnell v. State, 250 Md. App. 703, 711 (2021); Lindsey v. State,
235 Md. App. 299, 311 (2018).
Mohan argues there was insufficient evidence to sustain his conviction for child
sexual abuse. Mohan further maintains that the circuit court erred in its interpretation of
the term “parent” under CR § 3-602(b)(1). The critical question before us is whether the
circuit court erred in concluding that Mohan was a “parent” under the criminal statute.
Indeed, whether there was sufficient evidence to sustain Mohan’s conviction is secondary
to the initial question of whether the circuit court properly concluded that the General
Assembly intended the term “parent” to apply to an individual such as Mohan, who is a
step-parent with parental responsibilities. Because we must first determine whether the
circuit court correctly interpreted CR § 3-602(b)(1), our review is de novo. Richardson v.
Boozer, 209 Md. App. 1, 9 (2012) (“A question regarding statutory interpretation is a legal
question, which we review de novo.”).
I. The circuit court erred in concluding Mohan was a “parent” under CR § 3-
602(b)(1).
The goal of statutory interpretation “is to ascertain and effectuate the real and actual
intent of the Legislature.” Lockshin v. Semsker, 412 Md. 257, 274 (2010). Statutory
interpretation begins with the plain language. Price v. State, 378 Md. 378, 387 (2003). If
the plain language of the statute is unambiguous, our inquiry ends, and the statute is applied
as written. Lockshin, supra, 412 Md. at 275. When the language is ambiguous, however,
we must look further to grasp the legislative intent, and will turn to other indicia “including
the relevant statute’s legislative history, the context of the statute within the broader
5
legislative scheme, and the relative rationality of competing constructions.” Harrison-
Solomon v. State, 442 Md. 254, 265–66 (2015). We do not read the statutory provision in
isolation, but rather, the statute “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.” Lockshin, supra, 412 Md. at 276. Furthermore, we will not attempt to clarify
a statute with “forced or subtle interpretations” that would either limit or extend the
statute’s application. Id. at 275.
We presume the General Assembly “intend[ed] its enactments to operate together
as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize
the parts of a statute, to the extent possible consistent with the statute’s object and scope.”
Id. at 276. Further, “[w]e interpret statutes to give every word effect, avoiding
constructions that render any portion of the language superfluous or redundant.” Blondell
v. Balt. City Police Dep’t, 341 Md. 680, 691 (1996). Indeed, in all cases concerning
statutory interpretation, we seek “a reasonable interpretation -- one that is consonant with
logic and common sense.” Twigg v. State, 447 Md. 1, 24 (2016).
Our interpretation of the criminal statute is focused on the meaning of the word
“parent” as used in CR § 3-602(b)(1). This is because the State -- rather than charging
Mohan generally under the statute -- charged and tried Mohan specifically and only as a
“parent” of C. The circuit court determined Mohan was a “parent” as contemplated by the
criminal statute because he was: (1) a “live-in” step-parent; and (2) a de facto parent; and
(3) he stood in loco parentis to C. Accordingly, we are tasked with determining whether
6
the General Assembly intended the word “parent” to be broadly interpreted to include these
classes of individuals.
The criminal statute under which Mohan was charged reads as follows:
(b)(1) A parent or other person who has permanent or
temporary care or custody or responsibility for the supervision
of a minor may not cause sexual abuse to the minor.
CR § 3-602(b)(1).
The word “parent,” read on its own, is subject to two or more reasonable
interpretations. Gilmer v. State, 389 Md. 656, 663 (2005) (“When there is more than one
reasonable interpretation of a statute, however, the statute is ambiguous.”). It is reasonable
to read the word “parent” to mean exclusively biological or adoptive parent. The term may
also be read in a broader, more colloquial sense, including a step-parent with
responsibilities akin to those of a parent. The ambiguity of the term “parent” arises from
the lack of any clarifying definition provided by the General Assembly. Accordingly,
because the term “parent” is subject to more than one reasonable interpretation -- for the
want of a supplied definition -- we must turn to other indicia of the legislative intent to
determine the contemplated meaning of the term. Harrison-Solomon, supra, 442 Md. at
265–66.
Our inquiry and reading of the statute must not be siloed to a single word or
subsection alone. Indeed, we will “view[] the statute within the context of the statutory
scheme to which it belongs . . .” Lockshin, supra, 412 Md. at 276. Although there is no
supplied definition of the term “parent,” we endeavor to discover the contemplated
7
meaning of the term by examining the other classes of individuals prohibited from causing
sexual abuse to a minor.
CR § 3-602(b)(1) designates three discernable classes of persons prohibited from
causing sexual abuse to a minor: (1) parents; (2) other persons who have permanent or
temporary care or custody of a minor; and (3) other persons who have responsibility for
the supervision of a minor.3 Subsection 3-602(b)(2) prohibits the sexual abuse of a minor
by the following additional classes of individuals:
(2) A household member or family member may not cause
sexual abuse to a minor.
CR § 3-602(b)(2).
Unlike the term “parent,” the terms “family member” and “household member” are
clearly defined in CR § 3-601(a):
(3) “Family member” means a relative of a minor by blood,
adoption, or marriage.
(4) “Household member” means a person who lives with or is
a regular presence in a home of a minor at the time of the
alleged abuse.
CR § 3-601(a)(3)-(4).
3
The Court of Appeals has previously equated “permanent or temporary care or
custody” with an individual who is standing in loco parentis. See Pope v. State, 284 Md.
309, 322 (1979) (“Bowers equates ‘permanent or temporary care or custody’ with in loco
parentis, but ‘responsibility for the supervision of’ is not bound by certain of the strictures
required for one to stand in place of or instead of the parent.”) Accordingly, we equate
“permanent or temporary care or custody” as used in CR § 3-602(b)(1) with the term and
meaning of in loco parentis.
8
Accordingly, the criminal statute, read in its entirety, prohibits the following five
classes of individuals from causing sexual abuse to a minor: (1) parents; (2) other persons
who have permanent or temporary care or custody of a minor and/or are individuals
standing in loco parentis; (3) other persons who have responsibility for the supervision of
a minor; (4) family members related by blood, adoption, or marriage; and (5) household
members who live with the minor or have a regular presence in the home at the time of the
abuse.
In total, the classes of individuals range from “parent,” to marital or blood relatives,
to individuals who only have a regular presence in the home. Indeed, the General
Assembly constructed a comprehensive statute in order to apply to as many individuals as
possible who might have a close relationship of trust with a minor child. Accordingly, a
primary consideration we face is whether a broad interpretation of the term “parent” would
render any other portion of the statutory scheme “surplusage, superfluous, meaningless, or
nugatory.” Gilmer v. State, 389 Md. 656, 663 (2005).
In this context, we determine whether the word “parent” as used in CR § 3-602(b)(1)
is meant to be broadly interpreted to include an individual such as Mohan who was a “live-
in” step-parent of C. Notably, the circuit court arrived at its conclusion that Mohan was a
“parent” under CR § 3-602(b)(1) by reasoning that:
The argument of defense counsel is that Mr. Mohan is
not a parent as contemplated by Criminal Article 3-602(b)(1).
I find that he is a parent as contemplated by 3-602(b)(1) just
using common sense.
He is married or he was at the time of the allege[d]. He
was married to [C]’s mother. I believe using the factors that
9
were articulated in the Conover4 case, in the spirit of that case,
that he was acting as a de facto parent. That the legal parent or
the biological parent, she facilitated the relationship between
Mr. Mohan and [C]. He was her father figure. That’s the
testimony. That he was a live-in [step-parent]. He provided the
functions of the [step-parent].
So, again, I just see all of the elements there.
Most importantly, I think the reason the legislature
promulgated this statute and defined a parent as a person who
could commit this offense, it’s because of that -- how -- it’s that
breach of trust that I believe that was probably contemplated
by the legislature that was so volatile of decency and volatile
of what we all experience as what should not happen in a
civilized society.
So the rationale behind the statute’s promulgation I
think will be further[ed] by me finding that Mr. Mohan is a
parent as as (sic) contemplated by that statute.
He is -- also stands in loco parentis as counsel has
stated. Again, maybe not a dispositive fact, but a factor
nonetheless. So I deny your motion for that, on that ground.
By the circuit court’s reasoning, Mohan was a “parent” under CR § 3-602(b)(1)
because the nature of his relationship to C was characteristic of a “parent.” The circuit
court utilized three “factors” to conclude Mohan was a “parent” under the criminal statute:
(1) he was married to C’s biological mother at the time of the abuse and acted as a “live-
in” step-parent; (2) he was a de facto parent under the four-factor test in Conover; and
(3) he stood in loco parentis to C.
We first consider whether the General Assembly intended for the term “parent” to
include an individual who stands in loco parentis. Again, our goal is to ascertain the intent
4
Conover v. Conover, 450 Md. 51, 74 (2016).
10
of the General Assembly, and we will read the entire statute in a way that “avoid[s]
constructions that render any portion of the language superfluous or redundant.” Blondell,
supra, 341 Md. at 691.
Broadly interpreting “parent” to include individuals standing in loco parentis and/or
having “permanent or temporary care or custody” results in unnecessary redundancy.5 This
is because “parent” and in loco parentis appear as separate categories in the same
subsection. The General Assembly clearly delineated the statute by including a disjunctive
in the provision: “parent or other person who has permanent or temporary care or custody
. . .” CR § 3-602(b)(1) (emphasis added). In our view, this indicates that the General
Assembly intended “permanent or temporary care or custody” -- and/or in loco parentis --
to operate independently, and not to serve as a factor to find that a criminal defendant is a
“parent.” We, therefore, hold the trial judge erred by including “in loco parentis” and/or
“permanent or temporary care or custody” within the contemplated meaning of the term
“parent.”6
5
Again, the Court of Appeals previously equated “permanent or temporary care or
custody” with an individual standing in loco parentis. See Pope v. State, 284 Md. at 322.
6
We must emphasize our interpretation does not mean a biological or adoptive
parent could not also stand in loco parentis. Instead, our interpretation concludes all
biological or adoptive parents may stand in loco parentis, but not all individuals who stand
in loco parentis are equivalent to a “parent” under the contemplated meaning of the term
and the legislative intent of the statute.
11
We now consider whether the General Assembly intended “parent” to be interpreted
to include individuals who are de facto parents under the four-factor test in Conover.7 By
the plain language of the statute, there is no indication the General Assembly intended the
term “parent” to include de facto parents. This is simply because the term -- or any intent
to include the term -- is absent. Our research -- thorough we trust -- has revealed that de
facto parenthood -- as a legal concept set forth in Conover -- has never been used in any
Maryland case to interpret a criminal statute or to determine the application of a criminal
statute to a defendant charged with a crime. Indeed, the de facto parent factors have limited
application for establishing “standing to contest custody or visitation.” Conover, supra,
450 Md. at 85. We, therefore, reject the invitation to broadly interpret a criminal statute to
incorporate the civil de facto parent doctrine into an area in which it has no origin or
corollary application.
Furthermore, interpreting “parent” to include an individual who is a de facto parent,
as defined by the four factors in Conover, would result in unnecessary redundancy when
viewed in the context of the statutory scheme. At least two of the four Conover factors --
assuming parental obligations and responsibilities and sharing the same household -- are
7
The four Conover factors are: “(1) that the biological or adoptive parent consented
to, and fostered, the petitioner’s formation and establishment of a parent-like relationship
with the child; (2) that the petitioner and the child lived together in the same household;
(3) that the petitioner assumed obligations of parenthood by taking significant
responsibility for the child’s care, education and development, including contributing
towards the child's support, without expectation of financial compensation; and (4) that the
petitioner has been in a parental role for a length of time sufficient to have established with
the child a bonded, dependent relationship parental in nature.” Conover, supra, 450 Md.
at 74 (2016).
12
already present in subsections 3-601(b)(1) as the “responsibility for [] supervision,” and as
a “household member” under subsection 3-601(b)(2). Broadly interpreting “parent” to
include these categories that resemble the Conover factors undermines the General
Assembly’s clear intent to specifically delineate relationships to a minor child that are less
than a biological or adoptive parent. We hold that individuals who are neither biological
nor adoptive parents are not “parents” under CR § 3-602(b)(1) even if they satisfy the non-
statutory criteria for de facto parenthood.
Lastly, we consider whether the General Assembly intended the term “parent” to be
broadly interpreted to include someone who is a step-parent to a minor child. By the plain
language of the statute, there is no indication that the General Assembly intended “parent”
to include step-parents. Broadly interpreting “parent” to include an individual who is a
“live-in” step-parent is not necessarily redundant. Nevertheless, narrowly interpreting
“parent” to exclusively mean biological or adoptive parent is consistent with the legislative
intent and is in harmony with the remainder of the statute. This is because a step-parent
could fall under CR § 3-602(b)(2) as a “family member” related to the minor child by
marriage.
The fact that a legally married step-parent could fall under a separate subsection --
which carries the same maximum penalty as a “parent,” if convicted -- indicates that the
General Assembly intended to narrowly construe “parent” to biological and adoptive parent
only. When weighing “the relative rationality of competing constructions[],” it is more
rational to construct the statute and the meaning of the term “parent” in a way that is more
exclusive rather than inclusive. Harrison-Solomon, supra, 442 Md. at 265–66. This
13
reasoning is buttressed by the multitude of cases that stand for the widely understood legal
meaning of the term “parent” to be limited to biological or adoptive parent only. See E.N.
v. T.R., 474 Md. 346, 351 (2021) (“a child’s legal parent, i.e., biological or adoptive
parent[]”); Kpetigo v. Kpetigo, 238 Md. App. 561, 569 (2018) (“Instead, step-parents
previously have stood in the same shoes as other non-parental third parties.”). Further, any
ambiguity must be construed in favor of the criminal defendant.8 As a result, we hold that
the General Assembly did not intend for the term “parent” under CR § 3-602(b)(1) to
include individuals who are step-parents.
In sum, the ambiguity regarding the term “parent” is resolved when viewed in
context of the larger statutory scheme. The most logical and harmonizing conclusion is
that “parent” is meant to be narrowly construed as biological or adoptive parent only. The
classes of individuals that share characteristics of de facto parenthood and in loco parentis
are identified in other subsections of the statute. Interpreting “parent” to include these
classes would render both “parent” and the other subsections redundant and would
unnecessarily broaden the penal statute. Furthermore, narrowly interpreting “parent” as a
biological or adoptive parent -- excluding step-parents -- does not cut against the legislative
8
We have been mindful throughout our review of this case that it is “[a] fundamental
principle that penal statutes are to be strictly construed[],” and interpreted narrowly so that
“courts will not extend the punishment to cases not plainly within the language used.”
Ishola v. State, 404 Md. 155, 162 (2008) (internal quotation marks and citations omitted).
This fundamental principal, i.e., the rule of lenity, may be applied “when all other tools of
statutory construction fail to resolve an ambiguity.” Oglesby v. State, 441 Md. 673, 681
(2015).
14
intent of prohibiting as many individuals as possible who are in a position of trust from
sexually abusing a minor.
Moreover, although our decision is made without deference to the circuit court’s
findings, we must emphasize the forced and subtle interpretation engaged by the circuit
court to extend the statute’s application to Mohan. The circuit court reasoned that Mohan
was a “parent” because his relationship with C was characteristic of certain modes of
relationship to a minor child. The circuit court then used these characteristics as “factors”
to conclude he was effectively a “parent” under CR § 3-602(b)(1).
The effect of such makeshift statutory interpretation cuts against the General
Assembly’s intent to clearly differentiate the various modes of culpability. Had the
General Assembly intended to create a statute that would allow someone to be charged and
convicted as a “parent” by meeting various statutory and non-statutory criteria, it could
have easily done so. Instead, the General Assembly created classes of individuals ranging
from the narrowly specific -- a biological or adoptive parent -- to more general classes of
persons. Indeed, interpreting “parent” as its plainly understood legal meaning speaks to,
and does not detract from, the General Assembly’s intent to create four other categories
that capture various individuals who stand in a close position of trust to a minor child. To
interpret “parent” so broadly as to swallow these other categories would detract from the
General Assembly’s efforts to craft such a comprehensive statutory scheme.
We, therefore, hold the contemplated meaning of “parent” under CR § 3-602(b)(1)
is limited to biological or adoptive parent only. Because Mohan was neither the biological
15
nor adoptive parent of C, his conviction for child sexual abuse under CR § 3-602(b)(1)
must be reversed.
The circuit court relied on its factual findings that Mohan was a “live-in” step-
parent, and a de facto parent, and stood in loco parentis to C to conclude Mohan was a
“parent” under the criminal statute. Although the State does not adopt all the circuit court’s
reasoning, we address the State’s arguments on appeal.
First, the State, in attempting to defend essentially the charging decision made in
this case, asserts Mohan’s argument only implicates a variance between the allegata and
the probata -- or in other words -- a variance between what was alleged in the Criminal
Information and what was introduced at trial. Crispino v. State, 417 Md. 31, 51 (2010) (“A
variance has been defined as a difference between the allegations in a charging instrument
and the proof actually introduced at trial.”) (internal quotation marks and citations omitted).
Although the State improperly construes Mohan’s argument, it is certainly correct
that there was no variance between what the Criminal Information alleged and what was
presented at trial. The Statement of Charges, the Criminal Information, the evidence
adduced at trial, and Mohan’s ultimate conviction, all operated under the State’s theory
that Mohan was a “parent” of C. Accordingly, there is no difference between the allegata
or probata. This revelation, however, does not support the State’s position here
because -- as we have held based on our holding -- Mohan is not a “parent” of C under the
criminal statute and the specific language with which he was charged.
Second, the State argues the evidence was legally sufficient to prove Mohan was a
“parent or other person who [had] permanent or temporary care or custody[.]” The State
16
avers the evidence introduced at trial -- as well as Mohan’s own testimony -- conclusively
established he stood in loco parentis to C and was a person with care or custody of C within
the meaning of CR § 3-602(b)(1). The State asserts the various modes of culpability under
the criminal statute are not mutually exclusive and therefore not inconsistent with the
notion that a “parent” may also have “care or custody” of a minor.
The State’s logic is correct. It is entirely possible for an individual to be both a
“parent” and to have “care or custody” of a minor. The State is incorrect, however, in its
assertion that “the charging document may be construed as charging Mohan under § 3-
602(b)(1) generally[.]” The Statement of Charges and the Criminal Information did not
charge Mohan generally. Instead, it charged him specifically and only as a “parent.”9 We
are prohibited from construing the Criminal Information beyond the language used in the
Criminal Information to create a broader category of uncharged criminal culpability. See
Tapscott v. State, 106 Md. App. 109, 135 (1995) (“[w]hen the State delineated the
particular section of the statute, however, it charged only the conduct and circumstances
proscribed by that section.”).
In Tapscott, the State charged the defendant with violating the predecessor to
CR § 3-602(b)(1). The indictment alleged that the defendant was a person “having
responsibility for supervision” of the minor child. Id. at 133. The trial court instructed the
jury that it could find the defendant guilty of child abuse if Tapscott either had permanent
9
The relevant portion of the Statement of Charges and Criminal Information
provided: “[Mohan]… did cause sexual abuse to JUVENILE FEMALE, a minor, the
defendant being said child’s parent” and “[Mohan] did cause sexual abuse to [C], [a]
minor, the defendant being said child’s parent[.]”
17
or temporary care of the child or had responsibility for the supervision of the child. Id. at
133 n.12.
We reversed and explained that:
If the State was unsure about the circumstances under which
the sexual activity occurred, it could have generally charged
appellant under the statute. When construing the rule
established in Leon v. State, 180 Md. 279, 23 A.2d 706 (1942),
the court in Morrissey v. State, 9 Md. App. 470, 475–476, 265
A.2d 585 (1970) stated:
When a statute creates an offense and specifies
several different acts, transactions, or means by
which it may be committed, an indictment for
violation thereof may properly allege the offense
in one count by charging the accused in
conjunctive terms with doing any or all of the
acts, transactions, or means specified in the
statute. See also Ayre v. State, 21 Md. App. 61,
65, 318 A.2d 828 (1974).
When the State delineated the particular section of the statute,
however, it charged only the conduct and circumstances
proscribed by that section, and, absent appellant's consent, was
barred from later amending the indictment to charge different
circumstances.
Id. at 135.
Our review of the record in this case reveals that during the trial, the State fully
adopted the circuit court’s reliance on Conover in support of its conclusion that Mohan was
a de facto parent, and therefore a “parent” under the criminal statute. The State has since
abandoned its support of the circuit court’s reliance on Conover in order to raise another
argument that there was sufficient evidence presented at trial to presume Mohan was a legal
parent of C.
18
The State acknowledges that presumptive legal parentage was never discussed at
trial and that the jury was not asked to determine whether Mohan was C’s legal parent
based on that statutory presumption of parentage. In its brief, the State cities multiple
“presumptive parentage” statutes in its effort to establish Mohan’s status as a “parent”
under CR § 3-602(b)(1). In our view, these provisions do not apply to the context and facts
of this case. First, the presumptions of parentage the State cites apply in the “civil” law
context, as they are found in the Estates and Trusts and the Family Law Articles of the
Maryland Code, applying to civil disputes clarifying rights, responsibilities, and
relationships of family members. See Md. Code (1974, 2022 Repl. Vol.), §§ 1-206, 1-208,
1-208.1(a) of the Estates & Trusts Article (“ET”); see also Md. Code (1984, 2019 Repl.
Vol), §§ 5-1001(j), 5-1027 of the Family Law Article (“FL”). Second, the facts of this case
do not implicate these provisions. The rebuttable presumption of parentage applies to “a
child born to parents who have not participated in a marriage ceremony with each other.”
ET § 1-208(a), (c) (emphasis added); see also FL § 5-1001(j) (defining “putative father”
as an alleged father presumed to be the parent under ET § 1-208(c)).
In this case, Mohan and Haley began their relationship after C’s birth. Indeed,
Haley gave birth to C a year-and-a-half before beginning a relationship with Mohan. This
was not a situation where the couple were dating, Haley became pregnant, and then C was
born, giving rise to a presumption of paternity for Mohan. Contra Monroe v. Monroe, 329
Md. 758, 769–71 (1993) (holding putative father doctrine applied to couple who became
pregnant and had the child while dating, thus barring introduction of genetic testing by
mother attempting to rebut the presumption). Moreover, even if the putative father or
19
presumptive parent doctrine could apply to such a criminal case when a child was born
well before the alleged father began dating the child’s natural mother, the party seeking to
establish the presumption would still need to show that the alleged father (1) acknowledged
in writing he was the child’s father; (2) openly and notoriously recognized the child as his
child; or (3) subsequently married the mother and acknowledged the child as his, either
orally or in writing. ET § 1-208(c).
Indeed, there was no discussion, argument, or instruction to the jury regarding the
presumption of Mohan’s alleged legal parentage. Because this argument has not been
presented or preserved at trial, we decline to address it on appeal. Robinson v. State, 404
Md. 208, 216–17 (2008) (“It is well-settled that an appellate court ordinarily will not
consider any point or question “unless it plainly appears by the record to have been raised
in or decided by the trial court.”) (citing Md. Rule 8–131(a)); State v. Grafton, 255 Md.
App. 128, 145 (2022); see also Woodline v. State, 254 Md. App. 691, 708 (2022) (“Under
Maryland Rule 8-131(a), ‘[o]rdinarily, [this] court will not decide any . . . issue unless it
plainly appears by the record to have been raised in or decided by the trial court.’”).
Even if the State argued Mohan’s presumptive parentage during the trial, we
struggle to see how applying such a presumption to a criminal statute in which parentage
is an element of the crime charged would not implicate long-standing due process
concerns. “The State always has the burden to prove all elements of a criminal charge
beyond a reasonable doubt.” O’Sullivan v. State, 476 Md. 602, 638 (2021). Permitting
presumptions that establish necessary elements of a criminal offense unconstitutionally
“[casts] upon a defendant that sort of burden of ultimately persuading the jury of his
20
innocence (by negating in one fashion or another the necessary criminal element[)].”
Evans v. State, 28 Md. App. 640, 707 (1975), aff’d, 278 Md. 197 (1976). “A
presumption . . . may still have some utility for civil trials, but in a criminal trial it cuts
squarely athwart the due process requirement that the State prove every element of a crime
(including mens rea) beyond a reasonable doubt.” Id. at 707–08.
Further, when applying a paternity presumption in a civil dispute regarding
parentage, “the burden is on the complainant to prove that the ‘alleged father is the father
of the child.’” In re Roberto d.B., 399 Md. 267, 276 (2007); FL § 5-1027(a) (“At the trial,
the burden is on the complainant to establish by a preponderance of the evidence that the
alleged father is the father of the child.”). Even if the presumption of parentage could
somehow apply in a criminal case, the burden would still be on the State to prove the
presumption applies to Mohan. In this case, the use of the term “parent” in CR § 3-
602(b)(1) defines the relationship that must exist between the perpetrator and the victim
for that specific subsection of the statute to apply. That makes “parent” an element of the
crime charged. Therefore, because the State charged Mohan as a “parent,” the State had
the burden of establishing beyond a reasonable doubt this requisite element, that Mohan
was C’s “parent.”
We conclude that the criminal statute’s (CR § 3-602(b)(1)) contemplated meaning
of the term “parent” is limited to biological or adoptive parents. Indeed, the legislative
history of the statute at issue supports our analysis. The legislative history is addressed in
Pope v. State, 284 Md. 309 (1979), where the Court of Appeals noted that:
21
The General Assembly first evidenced its concern with the
mistreatment of children fifteen years ago when it added § 11A
to Art. 27 of the Maryland Code, later codified as Section 35A
of that article, declaring an assault on a child to be a felony.
The statute in its entirety provides:
“Any parent, adoptive parent or other person
who has the permanent or temporary care of
custody of a minor child under the age of
fourteen years who maliciously beats, strikes, or
otherwise mistreats such minor child to such
degree as to require medical treatment for such
child shall be guilty of a felony, and upon
conviction shall be sentenced to not more than
fifteen years in the Penitentiary.”
Id. at 317.
Undoubtedly, “parent,” as originally enacted, referred to “biological parent” instead
of “adoptive parent.” This is underscored by the holding in Pope, equating “parent” with
biological parent. Id. at 328-29. Thereafter, “adoptive parent” was dropped from the
predecessor to CR § 3-602(b)(1) in 1984. The legislative history regarding that amendment
reflects the following:
REVISOR’S NOTE: This subsection formerly appeared as
Article 27, § 35A(b)7.
In item (1) of this subsection, the words “adoptive parent”,
which formerly followed “parent”, are deleted as unnecessary.
1984 Md. Laws Ch. 296 at 16. Clearly, “adoptive parent” was “unnecessary” because
“adoptive parent” is a parent akin to a biological parent, and therefore, falls within the
ambit of “parent” as originally enacted.
Mohan, who was a “live-in” step-parent or individual who stood in loco parentis to
C, is not a “parent” under CR § 3-602(b)(1). Accordingly, we reverse Mohan’s conviction
22
for child sexual abuse. Given the circumstances of this case, however, we shall also vacate
Mohan’s sentence for third-degree sexual offense (which was completely suspended) and
remand the conviction for that offense for resentencing. Twigg, supra, 447 Md. at 30 n. 14
(affirming an appellate court’s discretion to vacate “all sentences originally imposed on
those convictions and sentences left undisturbed on appeal, so as to provide the court
maximum flexibility on remand to fashion a proper sentence that takes into account all of
the relevant facts and circumstances.”).
Here, the circuit court sentenced Mohan to 25-years’ incarceration for child sexual
abuse, the statutory maximum. See CR § 3-602(c). For the third-degree sexual offense,
the court sentenced Mohan to 10 years, consecutive to the 25-year sentence, but entirely
suspended the 10-year sentence in favor of five years of supervised probation.
Accordingly, Mohan’s total sentence was 35 years, with all but 25 years of the period of
incarceration suspended. In light of our reversing Mohan’s conviction for child sexual
abuse, the only sentence remaining in this case is the suspended 10-year sentence for third-
degree sexual offense.
We, therefore, vacate and remand the remaining sentence for third-degree sex
offense to the circuit court for resentencing. Under Maryland Rule 8-604(d)(1), an
appellate court is authorized to remand a case to a lower court if it “concludes that the
substantial merits of a case will not be determined by affirming, reversing or modifying
the judgment, or that justice will be served by permitting further proceedings.” Md. Rule
8-604(d)(1). Further, under the reasoning in Twigg and its progeny, we “remand in a case
where the sentencing package was disturbed by a decision to reverse a conviction.”
23
Johnson v. State, 248 Md. App. 348, 357 (2020); see also Nichols v. State, 461 Md. 572,
609 (2018) (“where an appellate court determines that at least one of a defendant's
sentences must be vacated, the appellate court may vacate all of the defendant's sentences
and remand for resentencing.”).
In sum, we reverse Mohan’s conviction for child sexual abuse under CR § 3-
602(b)(1). We vacate Mohan’s sentence for third-degree sexual offense and remand to the
trial court for resentencing. In so doing, the trial court will “[be] in the best position to
assess the effect of the withdrawal and to redefine the package’s size and shape (if, indeed,
redefinition seems appropriate).” Twigg, supra, 447 Md. at 28. The sentencing court may
impose a sentence on the remaining count for third-degree sexual offense up to “the
maximum . . . incarceration available at the time of [the defendant’s] crime[].” Id. at 30.
Any new sentence, however, cannot “exceed the aggregate sentence imposed originally.”
Id. at 30 n.14. In other words, the new aggregate sentence cannot be “more severe” than
the original aggregate sentence. State v. Thomas, 465 Md. 288, 310 (2019).
II. The circuit court did not err in admitting certain testimony as prior consistent
statements.
Mohan presents an additional argument that the circuit court erred in admitting
hearsay evidence at trial. Mohan asserts the circuit court improperly admitted out-of-court
statements, specifically witness statements reciting Haley’s statements of C’s disclosure of
Mohan’s alleged abuse as well as Mohan’s alleged admissions. Mohan argues these
witness recitations of Haley’s statements are hearsay and not subject to any exception to
the rule against hearsay.
24
Mohan challenges three evidentiary submissions: (1) the testimony from social
worker Keri Hignutt conveying Haley’s prior statements; (2) the testimony from Detective
Daniel Shultz conveying Haley’s prior statements; and (3) a screenshot of a series of text
messages sent by Haley to Mohan’s mother. The circuit court admitted the evidence and
determined the testimony was admissible as prior consistent statements. We review de
novo the circuit court’s legal determinations. Brooks v. State, 439 Md. 698, 709 (2014).
We summarize the context of the statements to address Mohan’s contention that the
testimony and text messages were improperly admitted into evidence. During the State’s
case-in-chief, Haley testified that C told her that Mohan put his penis on her vaginal area
on two separate occasions, approximately a month between incidents. Haley further
testified that Mohan denied that these incidents occurred, but he subsequently admitted that
the exposure to C did, in fact, occur. Haley testified she “[told] the police what [her]
daughter had said,” and further, what Mohan had admitted.
On cross-examination, defense counsel asked Haley about what she told Detective
Shultz and social worker Keri Hignutt, specifically regarding C’s disclosure and Mohan’s
admission:
Q. When you went to the police, . . . [o]ne of the people
you talk to is a lady by the name of Keri Hignutt . . . [a] lady
affiliated with the Child Advocacy Center?
A. Yes.
Q. Now, when you spoke to Ms. Hignutt, you provided
her information not just about what [C] told you but what
Brandon is supposed to have told you. You talked to her about
both of those things?
25
A. Yes.
Q. Your testimony just moments ago during direct was
that Brandon’s admission to you was in your mind, and as a
paraphrase, so clear it up for me if I’m wrong, but Brandon’s
disclosure to you, Brandon’s admission to you, was
substantially similar to what [C] had told you had happened?
A. Yes.
Q. I want to break that down a little bit. Because when
you went to the police the next day and you spoke to Ms.
Hignutt, isn’t it true that you told Ms. Hignutt, Keri, that [C]
had touched his penis a few days prior?
A. I wasn’t—I don’t think I said that. I’m not sure.
Q. You—
A. It was—I may have said it in that way, but what I had
meant was Brandon told her to touch—she—the bottom line,
she had touched his penis.
Q. And that’s just the first part of breaking it down,
because you also told Keri, Ms. Hignutt, that Brandon’s
admission to you was that the prior event—
A. Uh-huh.
Q. —the event that had happened some weeks or
months prior consisted of [C] watching Brandon urinate?
That’s what you told Keri Brandon’s admission was?
A. Okay.
Q. Well, I’m asking.
A. I don’t know. I don’t know.
Q. Isn’t that what you told Keri?
A. It was a year ago. I’m not sure.
26
Q. Okay.
A. It was a very stressful time.
Q. I understand.
Q. But you’d agree it’s an important distinction?
A. Absolutely.
Q. Touching penis to vagina versus a child who is
regularly bathed by someone seeing her father figure’s penis?
A. Uh-huh.
Q. You would agree those are quite different?
A. Yes.
On redirect examination, Haley testified that on the same day that she spoke to
Detective Shultz and Ms. Hignutt, she also communicated via text message with Mohan’s
mother. Haley testified the topic of their conversation related to C’s and Mohan’s
statements. The State showed Haley a copy of her text message exchange with Mohan’s
mother to refresh her recollection “as to exactly what Mr. Mohan had told [her].” Haley
testified -- based on her refreshed recollection -- that Mohan told her “it happened two
times, and that [C] watched him pee the first time, and then the second time that she touched
his penis.” Haley testified that Mohan’s version of events was inconsistent with what C
had disclosed to her.
C then took the stand and testified that Mohan put his penis on her vaginal area
during both incidents. C’s testimony was consistent with the description Haley provided
to Ms. Hignutt and Detective Shultz. When Ms. Hignutt and Detective Shultz testified, the
27
State asked what Haley had told them regarding C’s disclosure of the alleged abuse to her,
drawing hearsay objections from defense counsel. The circuit court overruled both
objections and allowed the testimony as prior consistent statements. The circuit court
further determined that defense counsel had opened the door to the admission of the prior
consistent statements by questioning Haley about the consistency of her disclosures to Ms.
Hignutt and Detective Shultz. Both witnesses then testified that Haley told them that C
disclosed to her that Mohan had inappropriately touched her and put his penis on her
vaginal area.
Mohan took the stand in his defense and testified that he did not inappropriately
touch C, but rather, C saw his penis when he was using the bathroom and he showed it to
her when she asked to see it. Mohan testified on cross-examination, however, that C
touched his penis without his consent and did so deliberately against his instruction not to
do so. Mohan then testified -- contrary to Haley’s prior testimony -- that he told her C had
touched his penis on her own volition.
The State called Haley in rebuttal and offered her text message exchange with
Mohan’s mother to serve as a prior consistent statement regarding what she conveyed to
her about Mohan’s admission to her. The court determined the text message exchange was
admissible as a prior consistent statement and that the danger of unfair prejudice did not
substantially outweigh its probative value.
Mohan argues that the three statements are inadmissible hearsay, and do not meet
the exception for hearsay as prior consistent statements under Md. Rule 5-802.1(b). The
State argues the evidence was properly admitted -- not as an exception to hearsay -- but
28
rather, as nonhearsay as prior consistent rehabilitative statements properly introduced
under Md. Rule 5-616(c)(2).
Prior consistent statements may serve two purposes under the Maryland Rules. A
prior consistent statement offered not for its truth or for substantive evidence may be used
to rehabilitate a witness’s credibility under Md. Rule 5-616(c)(2):
(2) Except as provided by statute, evidence of the witness's
prior statements that are consistent with the witness's present
testimony, when their having been made detracts from the
impeachment[.]
Md. Rule 5-616(c)(2).
Alternatively, when a prior consistent statement is offered for its truth and as
substantive evidence -- hearsay -- it may nevertheless be admitted as an exception to
hearsay if it is:
(b) A statement that is consistent with the declarant’s
testimony, if the statement is offered to rebut an express or
implied charge against the declarant of fabrication, or improper
influence or motive[.]
Md. Rule 5-802.1(b).
Accordingly, the key difference between these provisions is that Md. Rule 5-
616(c)(2) applies to nonhearsay rehabilitative statements whereas Md. Rule 5-802.1(b)
applies to hearsay statements that rebut an express or implied charge of fabrication or
motive to deceive. We have previously summarized the interplay of the two rules: “When
a prior consistent statement is inadmissible under Md. Rule 5-802.1(b), it may nevertheless
be admissible as nonhearsay to bolster credibility under Md. Rule 5-616(c)(2)[.]”
29
Quansah v. State, 207 Md. App. 636, 658 (2012). Indeed, statements made under Md. Rule
5-616(c)(2) for rehabilitative purposes are apart from hearsay statements:
Prior consistent statements used for rehabilitation of a witness
whose credibility is attacked are relevant not for their truth
since they are repetitions of the witness’s trial testimony. They
are relevant because the circumstances under which they are
made rebut an attack on the witness’s credibility. Thus, such
statements by definition are not offered as hearsay and
logically do not have to meet the same requirements as hearsay
statements falling within an exception to the hearsay rule.
Thomas v. State, 429 Md. 85, 108 (2012) (quoting Holmes v. State, 350 Md. 412, 427).
Accordingly, we must first determine whether the evidence at issue was offered as
substantive hearsay evidence or non-substantive evidence to rehabilitate Haley as a
witness. The law is settled that “[i]f the proponent of the evidence is asking the jury to rely
on what the declarant said, out-of-court, as true (accurate), it is hearsay.” Thomas, supra,429 Md. at 109 (quoting Lynn McLain, Md. Rules of Evidence 182 (2d ed. 2002)).
The testimony from Detective Shultz, Ms. Hignutt, and the text message exchange
between Haley and Mohan’s mother were offered to rehabilitate Haley’s credibility by
showing the consistency of her disclosures with her trial testimony. Indeed, these
statements were not offered for their content -- that Mohan initiated the encounters with C
-- but rather, that Haley consistently relayed Mohan’s alleged admission and C’s disclosure
to Detective Shultz, Ms. Hignutt, and Mohan’s mother. The admission of these statements
falls within the ambit of Md. Rule 5-616(c)(2) where “defense [counsel] contended that
30
[Haley] made inconsistent out-of-court statements and the [witness] testimony was offered
to rebut a prior inconsistency.”10 Thomas, supra, 429 Md. at 110.
Having determined the statements were not offered for their truth or as substantive
evidence, we now address whether the statements satisfy the requirements of Md. Rule 5-
616(c)(2). The offered statements must be consistent with the witness’s present testimony
and detract from or logically rebut the impeachment. Thomas, supra, 429 Md. at 108.
Haley was effectively impeached by defense counsel during cross-examination
when counsel drew attention to her lack of memory and/or inconsistencies regarding what
she reported to Detective Shultz, Ms. Hignutt, and Mohan’s mother. The State then elicited
statements from Detective Shultz, Ms. Hignutt, and the text message exchange with
Mohan’s mother that reiterated Haley’s consistent description of events in direct
examination, thereby attempting to rehabilitate her. Accordingly, Haley’s statements that
were relayed to Detective Shultz, Ms. Hignutt, and Mohan’s mother were consistent with
her prior statements and had the effect of detracting from defense counsel’s impeachment.
We hold, therefore, that the circuit court did not err in admitting this evidence as prior
consistent rehabilitative statements under Md. Rule 5-616(c)(2).
10
We note that Md. Rule 5-616(c)(2) has a necessary predicate that the witnesses
be impeached before a prior consistent statement may be introduced to rehabilitate. In other
words, a party “open[s] the door” to evidence that is relevant and admissible -- for the
purpose of rehabilitation -- when that party successfully impeaches a witness or draws into
question the credibility of the witness in either an opening statement or cross examination.
Quansah, supra, 207 Md. App. at 663 (citing Johnson v. State, 408 Md. 204, 226 (2009)).
Here, defense counsel opened the door to rehabilitation when questioning Haley on the
consistency of her statements to Ms. Hignutt and Detective Shultz.
31
III. Conclusion
In sum, we hold that the term “parent” under CR § 3-602(b)(1) was contemplated
by the General Assembly to mean biological or adoptive parent only, i.e., legal parent.
Accordingly, because Mohan was charged, tried, and convicted specifically and only as a
“parent” of C, we reverse his conviction for child sexual abuse. Further, we hold that the
trial court did not err in admitting certain statements as prior consistent statements under
Md. Rule 5-616(c)(2). Lastly, we vacate Mohan’s sentence for third-degree sex offense
and remand to the trial court for resentencing consistent with this opinion.
JUDGMENT OF THE CIRCUIT COURT
FOR WICOMICO COUNTY REVERSED,
IN PART, AND AFFIRMED, IN PART.
SENTENCE FOR THIRD-DEGREE SEX
OFFENSE VACATED. CASE REMANDED
TO THAT COURT FOR RESENTENCING
ON THE CONVICTION FOR THIRD-
DEGREE SEX OFFENSE. COSTS TO BE
PAID BY WICOMICO COUNTY.
32
Circuit Court for Wicomico County
Case No. C-22-CR-20-000497
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1853
September Term, 2021
______________________________________
BRANDON MOHAN
v.
STATE OF MARYLAND
______________________________________
Berger,
Friedman,
Harrell, Glenn T., Jr.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Concurrence by Friedman, J.
______________________________________
Filed: November 30, 2022
I concur in the judgment reached by my colleagues in the majority, but only because
I am bound by precedent to follow what I consider to be an incorrect reading of the
governing statute, Section 3-602(b) of the Criminal Law (“CR”) article of the Annotated
Code of Maryland. A plain reading of CR § 3-602 (b)(1) does not create “three discernable
classes,” as my colleagues write, Slip Op. at 8, but one class that encompasses all people
who are a parent or in a parent-like relationship to their sexual abuse victim. This clear,
plain, and commonsense reading of the statute is, however, foreclosed by the Court of
Appeals’ decision in Pope v. State, 284 Md. 309, 321-22 (1979) (holding that people
having “responsibility for supervision” of a child victim is a distinct category from people
having “care or custody” of a child victim), and, even more so, by our reported opinion in
Tapscott v. State, 106 Md. App. 109, 135 (1995) (“These alternatives are in the disjunctive,
setting forth several different classes of people who fall within the proscriptions of the
statute.”). I write separately, therefore, in the fervent hope that the Court of Appeals will
take this opportunity to correct this misreading of the statute or so that the General
Assembly can revise the statute to make even more plain, the meaning that should always
have been plain.
The very words of CR § 3-602(b)(1) make it clear to me that the General Assembly
intended to include within it all persons who are in a parental relationship or a parent-like
relationship with the child victim: “A parent or other person who has permanent or
temporary care or custody or responsibility for the supervision of a minor may not cause
sexual abuse to a minor.” I read that definition to encompass a variety of people who are
in a parent-like relationship to a child victim, either by virtue of having custody or by virtue
of having responsibility or supervision, or both. I do not read these as separate or discrete
silos of relationship. Rather, I read the statute as reflecting that the General Assembly,
understanding and anticipating the variety of parent and parent-like relationships, created
a single definition within which to encompass that variety.
I think that my reading of CR §3-602(b)(1) makes more sense in the context of the
criminal law article as a whole. Section 3-308 of the Criminal Law article defines as a
sexual offense in the fourth degree, sexual contact on children by people who hold positions
of care, custody, and responsibility to the child victim, but whose care, custody, and
responsibility is less than parent-like. Compare CR § 3-308 (defining a “person in a
position of authority” and prohibiting conduct) with CR § 3-602 (b)(1) (defining parent and
parent-like). With the lesser relationships of care, custody, and responsibility covered by
CR § 3-308, the greater relationships of care, custody, and supervision, i.e., those that are
parent-like, are covered by CR § 3-602(b)(1).
I am also unconvinced by the legislative history on which my colleagues rely, the
deletion of the term “adoptive parent” from the statute as part of code revision in 1984.
Slip Op. at 21-22. I think the better reading of that statutory change isn’t that “adopted
parent” was redundant to “parent,” but that it was redundant—and maybe by implication
suggested a limitation on—the whole definition of parent and parent-like in CR § 3-
602(b)(1) including both “care and custody”-style parent-like relationships and
“responsible for supervision”-style parent-like relationships.
Given that understanding of CR §3-602(b)(1), I think that the prosecutor’s decision
to charge Mohan as C’s “parent,” if an error at all, was harmless. It could not have led to
2
any confusion or prevented Mohan from having notice of the crime with which he was
charged. The alleged misidentification of the relationship didn’t change Mohan’s
relationship with C. Mohan was in a parent-like relationship with his victim, C. He called
himself C’s father. He was, in fact, C’s step-father. He had at least temporary, if not
permanent, care and custody of C. He was responsible for C’s supervision. He was also
certainly within the statutory definition of a “household member” to C. CR § 3-602(b)(2),
(a)(3), and CR § 3-601(a)(4). He was also certainly within the statutory definition of a
“family member” to C. CR § 3-602(b)(2), (a)(2), and CR § 3-601(a)(3). In my view, Mohan
violated the statute in every way that the statute can be violated. He was, in every sense, in
a parent-like relationship with C. More importantly, Mohan could not have had any
difficulty in understanding the nature of the crime with which he was charged nor was he,
in any way, hampered in his ability to defend himself. See Tapscott, 106 Md. App. at 127
(citing Jones v. State, 303 Md. 323, 336-37 (1985) (an indictment is sufficient if it “sets
forth the essential elements of the offense charged” and if confused about an indictment,
the defendant may demand a bill of particulars to clarify)).
I, therefore, concur in my colleague’s judgment, but only because I am compelled
by the mandatory precedents of Pope and Tapscott to do so.
3