Lindsey v. State

Marcus Jamal Lindsey v. State
Case No. 2704, September Term 2016
Opinion by Shaw Geter, J.
HEADNOTES:
Marcus Jamal Lindsey v. State of Maryland, No. 2704, September Term 2016,
Opinion by Shaw Geter, J.
1. CRIMINAL LAW – WEIGHT AND SUFFICIENCY OF EVIDENCE IN
GENERAL
In reviewing a challenge to the sufficiency of the evidence, an appellate court does
not inquire into and measure the weight of the evidence to ascertain whether the
State has proved its case beyond a reasonable doubt, but merely ascertains whether
there is any relevant evidence, properly before the jury, legally sufficient to sustain
a conviction.
2. CRIMINAL LAW – WEIGHT AND SUFFICIENCY OF EVIDENCE IN
GENERAL
There was sufficient evidence to support defendant’s conviction for human
trafficking under the “placing” or “harboring” modality; defendant acknowledged
that he brought victim to the hotel “for his reason” and that victim engaged in
prostitution at hotel, witness testified that she heard a struggle inside hotel room
and victim screaming for defendant to leave her alone, photographs of hotel room
showed evidence of prostitution, and defendant’s email account was used for
victim’s online escort advertisement.
3. CRIMINAL LAW – CREDIBILITY OF WITNESSES
Resolving conflicts in the evidence and weighing the credibility of witnesses are
matters for the fact finder, and in this regard, the jury is free to disregard
defendant’s denials or uncontradicted explanation of events.
4. CRIMINAL LAW – AUTHORITY OR DISCRETION OF COURT
In response to a question from a deliberating jury, trial court did not abuse its
discretion in providing response that fairly described the dates, as set forth in the
indictment, on which crime was alleged to have occurred.
5. CRIMINAL LAW – ADMISSION OF WHOLE CONVERSATION, OR
INSTRUMENT BECAUSE OF ADMISSION OF PART OR REFERENCE
THERETO
Trial court did not abuse its discretion in refusing to admit, under doctrine of
verbal completeness, self-serving statements from recorded jail conversations
between defendant and victim purporting to explain earlier statements made by
defendant during recorded jail conversations introduced by the State indicating
that he was trying to keep victim from returning to the State. Md. Rule 5-106.
6. CRIMINAL LAW – EVIDENCE FOR PURPOSE OF TESTING,
SUSTAINING, OR IMPEACHING CREDIBILITY OR CHARACTER OF
WITNESSES AND OTHERS
Evidence of an alleged crime victim’s pertinent trait of character may be
admissible if relevant to a contested issue at trial. Md. Rule 5-404(a)(2)(B).
7. CRIMINAL LAW – EVIDENCE FOR PURPOSE OF TESTING,
SUSTAINING, OR IMPEACHING CREDIBILITY OR CHARACTER OF
WITNESSES AND OTHERS
Trial court did not err in excluding character evidence that victim engaged in
prostitution subsequent to the date on which crime was alleged to have occurred,
as such evidence was not relevant to determination of issue of whether defendant
had forced victim to prostitute or placed her in hotel for prostitution on date that
crime was alleged to have occurred.
8. CRIMINAL LAW – TIME FOR, AND FORM OF, OBJECTION
For purposes of rule stating that an objection to a jury instruction must be made
promptly after the court instructs the jury, party who indicated that he had no
objection immediately following instruction, but who objected to the instruction
before trial resumed, met objective of the preservation requirement by providing
court with an opportunity to consider and correct the instruction before parties
began their closing arguments. Md. Rule 4-325(e).
9. CRIMINAL LAW – FAILURE TO INSTRUCT
Trial court did not abuse its discretion in declining to give defendant’s proposed
instruction on human trafficking, where no pattern instruction was available at the
time of trial, instruction given closely tracked language of the statute, included all
elements of the offenses, and instructions as a whole adequately informed jury that
the State was required to prove each element of each offense beyond a reasonable
doubt. Md. Rule 4-325(c).
10. CRIMINAL LAW – FAILURE TO INSTRUCT
Trial court did not abuse its discretion in declining defendant’s request to define
the terms, “place,” “harbor,” “prostitution,” and “knowingly” where terms’
meanings were implicit and clear and required no further definition.
Circuit Court for Montgomery County
Case No. 129487
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2704
September Term, 2016
______________________________________
MARCUS JAMAL LINDSEY
v.
STATE OF MARYLAND
______________________________________
Leahy,
Reed,
Shaw Geter,
JJ.
______________________________________
Opinion by Shaw Geter, J.
______________________________________
Filed: January 2, 2018
Appellant, Marcus Jamal Lindsey, was convicted by a jury in the Circuit Court for
Montgomery County of second-degree assault and two counts of human trafficking. The
court sentenced appellant to twenty years in prison for one count of human trafficking, and
to concurrent ten-year sentences on the remaining counts. Appellant presents the following
questions for our review, the first of which we have rephrased:
1. Was the evidence sufficient to sustain appellant’s conviction for human
trafficking for placing or causing another to be placed in the hotel for
prostitution?1
2. Did the circuit court abuse its discretion by instructing the jury, in
response to a jury note, that one count of human trafficking related to
alleged conduct “on or about March 3, 2016,” rather than “on March 3,
2016?”
3. Did the circuit court abuse its discretion in refusing to allow the defense
to play recordings of jail telephone calls involving [appellant]?
4. Did the circuit court err in barring the defense from introducing evidence
that the woman whom appellant allegedly forced into prostitution was
engaging in prostitution while appellant was in jail?
5. Did the circuit court abuse its discretion by failing to clearly delineate the
elements of human trafficking in the jury instructions?
For the reasons set forth below, we shall affirm the judgments of the circuit court.
1
Appellant phrased the first question as: “Did the State fail to prove beyond a reasonable
doubt that [appellant] placed or caused another to be placed in a hotel room for
prostitution?” As set forth below, this Court does not weigh the evidence to ascertain
whether the State has proved its case beyond a reasonable doubt, but rather, determines
whether there is legally sufficient evidence to sustain appellant’s conviction. See Morgan
v. State, 134 Md. App. 113, 126 (2000).
FACTUAL BACKGROUND
The State alleged that appellant took S.S.2 to a hotel room in Rockville, attempted
to force her to have sex with someone, and struck her in the face. S.S. did not testify. The
defense’s theory of the case was that S.S. was appellant’s girlfriend, and that she prostituted
against his wishes. With respect to the second-degree assault charge, appellant admitted
that he hit S.S. in the face during an argument in the hotel room, but claimed that he did so
in self-defense.
Solange Kpela, a housekeeper at the Radisson hotel in Rockville, testified that on
March 3, 2016, she was cleaning the hallway of the second floor of the hotel when she
heard a man and woman arguing and “struggling” inside room 201. Ms. Kpela explained:
It sound – normally when you come in the hotel, what caught my attention,
that part is to have fun, but it was something like struggling. The male was
saying, who are you going to talk to. The lady was screaming, get away from
me, you lied to me.
* * *
It was like, you are a hook – like this embarrasses me – you are a hook, you
deserve it, who are you going to talk to. And it was back and forth. The lady
was screaming, leave me alone, get away from me, stuff like that.
Ms. Kpela’s first instinct was to get help for the woman. Before going to the front desk to
report the incident, however, she decided to first record the argument by using her cell
phone. The cell phone recording was played for the jury and admitted into evidence.
Sounds of a struggle can be heard in the recording, and a female voice saying, “Marcus,
2
We shall refer to the victim as “S.S.” in order to protect her privacy.
2
stop it. No, no, no. No. No,” and “He didn’t mean anything.”
Sandra Liuzzi, the catering sales manager at the Radisson, testified that she was at
the front desk of the hotel on March 3, 2016, when a female guest approached her appearing
“very frightened,” “crying,” and “extremely upset.” Ms. Liuzzi tried to calm the guest
down so that she could figure out what the problem was and get her help if she needed it.
According to Ms. Liuzzi, the guest stated that “someone had hurt her,” “assaulted her in
some way,” and that “someone was trying to make her have sex with someone.” As Ms.
Liuzzi was picking up the phone to call 911, the guest said, “oh my god…there he is.” The
man then began to approach them, but once he noticed that Ms. Liuzzi was making a phone
call, he walked away. During this time, Ms. Kpela also approached Ms. Liuzzi at the front
desk appearing very upset and insistent that she needed to speak with Ms. Liuzzi.
Ms. Liuzzi called 911, and the 911 recording was played for the jury and admitted
into evidence. In the call, Ms. Liuzzi stated to the dispatcher that a guest had been “beaten
up” by “[appellant].” On cross-examination, Ms. Liuzzi acknowledged that she did not
state to the 911 dispatcher that the guest had told her that someone had forced the guest to
have sex, because, she explained, her goal was “just to get the police there as quickly as
possible.”
Rockville City Police Officer Tibbs3 responded to the Radisson. Upon arrival, he
encountered S.S., whom he observed to have a bruise on her right eye. S.S. advised Officer
Tibbs that she had no identification, no wallet, and no cell phone.
3
Officer Tibbs’ first name does not appear in the transcript.
3
Montgomery County Police Detective Molly Stone of the Vice and Intelligence
Unit, the lead investigator assigned to the case, arrived at the Radisson and encountered
S.S., whom she observed had a “swollen mark” under her right eye and redness on the left
side of her face. The hotel folio records indicated that Kelly Nost had checked-in to the
hotel and signed for the room by providing her address and phone number. The second
page of the hotel folio record contained a photograph of a driver’s license for Cicley Ann
Lindsey-Asmani (“Ms. Asmani”), indicating that she was the individual who had rented
the room. Ms. Asmani is appellant’s mother.
After speaking with S.S. for approximately one hour, Detective Stone accompanied
her to room 201, where S.S. retrieved some clothing items and commented that appellant
had taken other things from the room. Police photographs of room 201 were introduced
into evidence showing boxes of condoms, condom wrappers, condoms in the nightstand
drawer, a large piece of braided hair on the floor, a cell phone in a box, a sheet of paper
with a list of phone numbers, and a Verizon phone bill addressed to Ms. Asmani.
S.S. directed Detective Stone to the website, “Backpage.com,” where the detective
located escort advertisements for S.S. and Ms. Nost by using the phone number that Ms.
Nost had provided to the hotel at check-in. Print-outs of those ads were introduced into
evidence. On cross-examination, Detective Stone testified that the escort ads for S.S. and
Ms. Nost were associated with the e-mail addresses, “braman5, or something along those
lines,” and “betterplayitsmart@icloud.com.”
On April 1, 2016, appellant was arrested at an extended stay hotel in Germantown,
where he had been staying with S.S. Montgomery County Police Detective Nicholas
4
Jerman of the Vice and Intelligence Unit interviewed S.S. at the hotel. Detective Jerman
testified that S.S. informed him that she had posted her own ads on Backpage.com using
the e-mails, “bramanfifthfloor” and “betterplayitsmart@icloud.com.” According to the
detective, when he asked S.S. if appellant had told her to post the ads, she replied, “He
never forces me to do anything. He don’t even want me to do this, so I mean I can take the
blame.” Detective Jerman further testified that it is common for prostitutes to take the
blame for their pimps.
S.S.’s mother testified that she and her husband adopted S.S. when she was three-
years-old, and that S.S. had not lived with them since she was sixteen-years-old. She
testified that she had previously assisted with her daughter’s placement in a group home,
but that she had not spoken to her daughter in over three months, and that she did not know
her daughter’s current whereabouts.
Ms. Asmani and Nicole Lindsey, appellant’s sister, each testified that S.S. and
appellant had been dating, and that S.S. was the cousin of appellant’s children’s mother.
Ms. Asmani testified that she rented the room at the Radisson so that appellant could be
close to the hospital where his son was being delivered because appellant was homeless
and he needed a place to so that “he can get cleaned up, go visit his son.” Ms. Asmani did
not visit the hotel room that she rented for appellant.
Following appellant’s arrest in this case, Ms. Asmani continued to communicate
with S.S., and allowed S.S. to live with her for approximately one week. The defense
introduced copies of text messages between Ms. Asmani and S.S. in which Ms. Asmani
asked S.S. why she lied to police by telling them that appellant had forced her to prostitute.
5
S.S. responded by text message, saying that she had acted “out of the heat” of a “moment
of anger” because she was mad that Ms. Nost was there and that she was “influencing him
too much.”
Appellant testified that he brought S.S. to the Radisson hotel with him to be near
the hospital where his son was being delivered. Appellant stated that S.S. was his
girlfriend, that she was a prostitute, and that he had brought her to the hotel for “his reason.”
He stated that Ms. Nost was also a prostitute, and that S.S. had invited her to the hotel
room, and that although he knew that both women had engaged in prostitution in the hotel
room, he was not present in the room when they did so. According to appellant, the
physical altercation between him and S.S. at the Radisson on March 3, 2016, was
precipitated by a sexual encounter on the previous day involving himself, S.S., and Ms.
Nost, during which S.S. was unhappy that he was not showing her enough attention.
Appellant admitted that on March 3, 2016, he hit S.S. in the face after she had “yanked”
his hair. Appellant acknowledged that he grabbed S.S. to keep her from leaving the room,
but stated that it was not because he was forcing her to engage in prostitution. He explained
that he was trying to keep her from calling the police because he had outstanding warrants
for a probation violation, and he feared that he would be arrested if the police were called.
On cross-examination, appellant acknowledged that in the weeks leading up to
March 3, 2016, he and S.S. stayed at ten different hotels in the Washington, D.C. and
Baltimore area, for one or two nights on average. Appellant explained that he did this
because he was homeless. Appellant had received a tax refund that he used to stay in these
hotels, and he booked the hotels online to take advantage of discounted prices. In response
6
to the prosecutor’s question as to whether S.S.’s escort ad was posted on Backpage.com
during the two-week time period prior to March 3, 2016, appellant responded that it was
not posted the “entire time,” explaining:
[W]hen my tax money had run out, that’s when she said we start sleeping in
stairwells, and stuff like that. So, she was like she’s not going to live like
that, and she, I guess she just started [prostituting].
Appellant was aware that S.S. was posted as an escort on Backpage.com on March
3, 2016. Appellant admitted that “betterplayitsmart@icloud.com” is his e-mail account,
but stated that S.S. had access to his e-mail account because their electronic devices were
linked to the same iCloud account.
Appellant was aware that S.S. was engaged in prostitution in the Radisson hotel
room. He testified that he did not make S.S. prostitute, he did not receive any money or
financial benefit from her prostitution, and he did not place her in the Radisson for
prostitution. He stated that he “didn’t like her doing it,” and “didn’t want her doing it at
all” because he “didn’t want to be involved with it.”
We shall provide additional facts as necessitated by our discussion of the issues
presented.
DISCUSSION
I.
Appellant contends that the evidence was insufficient to sustain his conviction for
human trafficking by “knowingly harboring, taking, placing or causing another to be placed
in any place for prostitution” under Maryland Code, Section 11-303(a)(1)(ii) of the
Criminal Law Article (“C.L.”). Specifically, appellant claims that the evidence failed to
7
show that he “harbored” S.S. in the hotel for the purpose of prostitution. According to
appellant, the evidence “overwhelmingly established” that S.S. was at the hotel
“voluntarily, and for purposes unrelated to prostitution.” The State responds that the
evidence was sufficient to show that appellant brought S.S. to the hotel room for the
purpose of prostitution. Appellant does not challenge the sufficiency of the evidence as to
his convictions for human trafficking by force under CL § 11-303(b)(2) and for second-
degree assault.
We review a challenge to the sufficiency of the evidence to 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.’”
Grimm v. State, 447 Md. 482, 494-95 (2016) (quoting Cox v. State, 421 Md. 630, 656-57
(2011)); accord Jackson v. Virginia, 443 U.S. 307, 319 (1979). In applying that test, “[w]e
defer to the fact finder’s opportunity to assess the credibility of witnesses, weigh the
evidence, and resolve conflicts in the evidence.” Neal v. State, 191 Md. App. 297, 314
(2010) (citation and internal quotation marks omitted). And, importantly, we defer to any
reasonable inferences a jury could have drawn in reaching its verdict, and determine
whether there is sufficient evidence to support those inferences. State v. Mayers, 417 Md.
449, 466 (2010).
This Court does not “inquire into and measure the weight of the evidence to
ascertain whether the State has proved its case beyond a reasonable doubt, but merely
ascertains whether there is any relevant evidence, properly before the jury, legally
sufficient to sustain a conviction.” Morgan v. State, 134 Md. App. 113, 126 (2000)
8
(quoting State v. Devers, 260 Md. 360, 371 (1971)). Importantly, “it is not the function or
duty of the appellate court to undertake a review of the record that would amount to, in
essence, a retrial of the case.” Mayers, 417 Md. at 466 (quoting State v. Albrecht, 336 Md.
475, 478 (1994)).
Appellant challenges his conviction for human trafficking under CL § 11-
303(a)(1)(ii) which states that “[a] person may not knowingly…place, cause to be placed,
or harbor another in any place for prostitution[.]” “Prostitution” is defined as “the
performance of a sexual act, sexual contact, or vaginal intercourse for hire.” C.L. § 11-
301(c).
Appellant acknowledged that he “brought [S.S.]” to the hotel “for his reason,” and
that S.S. was engaged in prostitution in the hotel room. Ms. Kpela testified that she heard
a woman screaming in room 201 “leave me alone, get away from me,” and the response,
“you deserve it, who are you going to talk to?” Immediately thereafter, S.S. was observed
to be visibly shaken as she sought help from the staff in the hotel lobby. Photographs of
the hotel room showed boxes of condoms, condoms in the nightstand, condom wrappers
on the floor, and a list of phone numbers.
The documentary evidence showed that although Ms. Asmani rented the hotel room,
it was Ms. Nost who checked-in to the hotel for appellant. Detective Stone’s investigation
revealed that the phone number that Ms. Nost provided at check-in was the same phone
number associated with S.S.’s Backpage.com account advertising “escort” or prostitution
services. Moreover, S.S.’s Backpage.com account was connected to the email address,
“betterplayitsmart@icloud.com,” which e-mail appellant acknowledged to be his.
9
Appellant stated that he was aware that S.S. had posted an escort ad on Backpage.com on
March 3, 2016.
Appellant’s explanation for his presence at the Radisson, and his denial of any
involvement in S.S.’s prostitution during his stay there, was for the jury to consider and
weigh against the other evidence in the case. As we have stated before, “we must give
great deference to the trier of facts’ opportunity to assess the credibility of witnesses, weigh
the evidence, and resolve conflicts in the evidence[.]” Pinkney v. State, 151 Md. App. 311,
329 (2003); see also Kamara v. State, 184 Md. App. 59, 79 (2009) (quoting Draco v. State,
46 Md. App. 622, 628 (1980) (“The credibility of the witnesses at trial is of course for the
trier of fact[, and] the trier of fact is under no obligation to believe even uncontradicted
explanations or denials of an accused”)); see also Turner v. State, 192 Md. App. 45, 81
(2010) (citation omitted) (observing that the jury is “free to discount or disregard totally [a
defendant’s] account of the incident”).
Based upon the verdicts in this case, it is apparent that the jury did not credit
appellant’s testimony. We conclude that the evidence was sufficient to sustain appellant’s
conviction for human trafficking by placing or harboring S.S. in the hotel for prostitution.
II.
During its deliberations, the jury sent the trial judge a note asking:
With regards to the Human Trafficking – Force charge, is this charge
limited to – on the day of the incident? Or, is it over the time of [appellant]
and [S.S.]’s relation?
In response to the jury note, the following discussion ensued among the parties
and the court:
10
COURT: [T]he answer is that [appellant] is charged with, all three charges
are alleged to have occurred on March 3rd, 2016. So I’m inclined to respond
to this question by advising the jury that [appellant] is alleged to have
committed this offense on March 3rd, 2016.
[PROSECUTOR]: Would the court be inclined to track the language of the
indictment that says on or about March 3rd, 2016?
THE COURT: All right.
[DEFENSE COUNSEL]: May I be heard on that, Your Honor?
COURT: Sure.
[DEFENSE COUNSEL]: This case was presented to the jury on, and it’s
identified on or about is a way of just in case it’s not a different day. That
the government wanted to, had the state wanted to charge a continuing course
of conduct they could have charged between X date and Y date. That’s often
done in indictments, Your Honor. That wasn’t done here. On or about means
– if we made a mistake, if it happened on the 2nd, then it’s on or about. This
case was presented to the jury as if the events happened on March 3rd. The
whole case was pitched as the March 3rd. So, Your Honor, we’d request that
Your Honor go with your initial instinct, that you tell the jury that the date is
March 3rd. Thank you.
THE COURT: All right. The response that I’m sending back is, [“A]nswer,
it is alleged in count one that [appellant] committed this offense on or
about March 3rd, 2016.[”]
[DEFENSE COUNSEL]: Your Honor, my objection be preserved today.
THE COURT: It is on the record.
Appellant contends that the trial court abused its discretion by failing to instruct the jury
that the first count related to alleged conduct on March 3rd, 2016. He argues that by
responding to the jury note that the count related to conduct “on or about” March 3, 2016,
the court “implicitly amended the indictment” and “invited the jury to convict [him] of
human trafficking that may or may not have occurred in that broader, uncharged time
period.”
11
The State argues that the court’s response to the jury question was a proper exercise
of discretion. The State contends that because the evidence showed that appellant brought
S.S. to the Radisson sometime between February 29 and March 3, 2016, the court’s
response fairly described the dates on which the crime was alleged to occur, as set forth in
the indictment.
Maryland Rule 4-325(a) requires the court to instruct the jury at the close of the
evidence and permits the court to supplement those instructions at a later time, “when
appropriate.” The decision of whether to supplement the instructions, including an
instruction given in response to a jury question, is within the discretion of the trial court
and will not be disturbed except on a clear showing of an abuse of discretion. Appraicio
v. State, 431 Md. 42, 51 (2013) (citations omitted). “[T]rial courts have a duty to answer,
as directly as possible, the questions posed by jurors.” Id. at 53.
In the present case, the evidence showed that the room at the Radisson was rented
for appellant from February 29, 2016 until March 3, 2016. The prosecutor included this
timeframe in his cross-examination of appellant, when he asked, “on or about March 3rd,
2016, did you place or cause to be placed [S.S.] in a place at the Radisson Hotel for
prostitution?” Because the evidence showed that appellant took S.S. to the Radisson at
some unspecified time between February 29 and March 3, 2016, the court’s response to the
jury question fairly covered those dates on which the crime, as described in the indictment,
was alleged to have occurred.
We are unpersuaded by appellant’s argument that the court’s response to the jury
question permitted the jury to convict him for uncharged crimes on dates other than March
12
3, 2016, for which appellant was provided no opportunity to defend. See Williams v. State,
302 Md. 787, 791 (1985) (“Every criminal charge must characterize the crime, and provide
the defendant with such a description of the particular act alleged to have been committed
so as to inform him of the specific conduct with which he is charged, thereby enabling him
to defend against the accusation[.]”). Appellant was on notice from the indictment that the
criminal offense of human trafficking by force was alleged to have occurred “on or about
March 3rd, 2016” and the evidence adduced at trial was consistent with the facts as
charged. We perceive no abuse of discretion in the trial court’s response to the jury note
that the first count related to alleged conduct “on or about March 3rd, 2016.”
III.
Appellant contends that the trial court abused its discretion in refusing to allow him
to play excerpts from recorded jail telephone calls in response to evidence of recorded jail
calls introduced by the State. Appellant maintains that the doctrine of verbal completeness
requires that he be permitted to play excerpts of telephone calls which were “part of one,
ongoing conversation” that were “necessary to provide the proper context” for the
recordings introduced by the State. Alternatively, appellant contends that the recordings
were admissible to impeach S.S.’s statement that appellant had forced her to have sex with
someone at the hotel.
The State responds that the excerpts of the recordings that appellant sought to admit
were not admissible under the doctrine of verbal completeness because they were not a
continuation of the calls that the State offered. The State further contends that the
13
statements were not inconsistent with S.S.’s earlier statements, and that any error in
excluding the excerpts of the calls was harmless beyond a reasonable doubt because there
was evidence before the jury that S.S. had made similar inconsistent remarks to other
witnesses.
The State introduced the following three excerpts from appellant’s recorded phone
conversations while he was in jail. The first call from April 7, 2016, involved an
unidentified male who told appellant the following:
[S]he’s not going to be coming back down here, and, and, and, and, not go
there, so you should be good. I mean they should, they should be able to,
you know, reduce everything, and just finish up your probation or whatever,
and then get, get out of there.
During an April 11, 2016 call, Ms. Mitchell, the mother of appellant’s children and
S.S.’s cousin, told appellant, “[S]he’s not coming down here,” and, “[S]he doesn’t even
know your court dates, nothing.” Also on April 11, 2016, appellant stated the following in
a conversation with S.S.:
Don’t don’t be saying where you at, though, just say, just talk, talk codes…
Don’t be doing all kinds of shit running around, running off with people and
shit. I want to know where you at.
In response to the State’s evidence of the jail calls, defense counsel argued that he
was entitled to play the following portions of three additional recorded telephone calls
under the doctrine of verbal completeness:
An April 24, 2016 call, during which S.S. stated to appellant, “Baby, I miss
you so much. Oh my God. Oh my God. Wait all I do is talk about you;”
An April 28, 2016 call during which appellant told S.S., “I’m the, you know
I’m the one that told you to come back down here;” and
14
A July 5, 2016 call during which S.S. told appellant that she was trying to
get a house “for us,” and appellant commended her for “moving up the right
way” trying to get a job as a cook and go to school, and the two professed
their love for one another.
Defense counsel argued to the court in support of the admission of the three jail calls
as follows:
[DEFENSE COUNSEL]: This is a series of ongoing communications
between [appellant] and his girlfriend, at the time, who are communicating
about a variety of subject matter[s], including whether or not she will be
coming back into the state to join him. This conversation is ongoing across
several months, and goes well into July – through July 5th at least there’s
discussion of whether she’ll be coming back or not.
THE COURT: So, how does a call on April 24, April 28, and July 5 apply to
a call of April 11 that would make it relevant to the doctrine of completeness?
Usually, it’s something that occurs right at the same time. I mean I’ve seen
it in deposition testimony, in prior testimony you want the rest of the
statement read to put that statement into context. How does something on
April 24, April 2[8] and July 5th relate to something that was said on April
11th?
[DEFENSE COUNSEL]: Your Honor, we believe the Government’s
proffering these calls to show or to imply that [appellant] did not want [S.S.]
to come back into the area and there are clear implications that that’s not the
case. Over the course of the conversations with his girlfriend, there were
discussions, and there were discussions both ways. She was coming, or she
wasn’t coming, it was back and forth. It was a continuing, ongoing long-
distance conversation in this relationship between [appellant] and,
importantly, the complaining witness who’s not present.
THE COURT: What’s the State’s position?
[PROSECUTOR]: Self-serving hearsay, Your Honor. Under [Conyers v.
State, 345 Md. 525, 541 (1997)], the doctrine of verbal completeness does
not allow evidence that’s otherwise inadmissible as hearsay to become
admissible solely because it’s derived from [] even if there is [a] single
writing or a single conversation.
There are jail calls that occurred weeks, if not months later interspersed with
other conversations with other individuals, as well as other conversations
15
with the same individual. The doctrine of completeness just simply doesn’t
apply; they’re attempting to bootstrap favorable statements that [appellant]
made at another time into evidence offered for its truth, and that’s not what
the doctrine envisions.
The court rejected appellant’s request to admit the April 24 – July 11, 2016 calls, finding
as follows:
Well, the State’s seeking to introduce statements made by [appellant], on
April 11, and he, clearly is the one making statements.
He’s responding to statements made by [S.S.]. The statements, on April 24,
April 28 and July 5, made by [S.S.] and some comments by the defendant, I
do not find that they are statements that fall within the doctrine of
completeness for admissibility purposes.
In addition, I do not find that these statements are admissible under any
theory to allow them to come into evidence. So, I’m going to deny the
Defense request to introduce the statements of April 24, April 28, and July
5th.
“The common law doctrine of verbal completeness ‘allows a party to respond to
the admission, by an opponent, of part of a writing or conversation, by admitting the
remainder of that writing or conversation.’” Rutherford v. State, 160 Md. App. 311, 320
(2004) (quoting Conyers v. State, 345 Md. 525, 541 (1997)). This doctrine is codified in
Maryland Rule 5-106, which states:
When part or all of a writing or recorded statement is introduced by a party,
an adverse party may require the introduction at that time of any other part
or any other writing or recorded statement which ought in fairness to be
considered contemporaneously with it.
As the Court of Appeals noted in Conyers, “Maryland Rule 5-106 does not change
the requirements for admissibility under the common law doctrine or allow the admission
of otherwise inadmissible evidence, except to the extent that it is necessary, in fairness, to
16
explain what the opposing party has elicited.” 345 Md. at 541 (citation and internal
quotation marks omitted). The Court then identified the three requirements for
admissibility under the doctrine of completeness:
(a) No utterance irrelevant to the issue is receivable;
(b) No more of the remainder of the utterance than concerns the same
subject, and is explanatory of the first part, is receivable;
(c) The remainder thus received merely aids in the construction of the
utterance as a whole, and is not in itself testimony.
Id. at 541-42 (citation omitted). Additionally, the doctrine of verbal completeness is
subject to the rules of evidence: the utterance must be relevant, its prejudice must not
outweigh its probative value, and the doctrine does not allow into evidence an utterance
that is otherwise inadmissible hearsay to become admissible solely because it is derived
from a single writing or conversation. Id. at 542, 545; see also Rutherford, 160 Md. App.
at 320. Generally, the statements sought to be admitted under the doctrine of verbal
completeness are part of a single writing or conversation. The Court of Appeals has
recognized, however, that “[i]n an appropriate circumstance [] the doctrine would permit
the admission of a separate writing or conversation to place in context a
previously-admitted writing or conversation.” Conyers, 345 Md. at 542 (emphasis
omitted).
In Conyers, a State’s witness testified that appellant owned two handguns. Id. at
543. The defense sought to cross-examine the witness about a conversation that she had
with appellant in which he told her that he had given the guns to someone else prior to the
murder. Id. Defense counsel argued that the exculpatory hearsay statement was admissible
17
under the doctrine of verbal completeness to balance the inculpatory hearsay statements
offered by the State during the witness’ direct examination. Id. at 540. The Court of
Appeals rejected the defense’s argument and held that the trial court had not abused its
discretion in refusing to admit the separate hearsay statement under the doctrine of verbal
completeness. Id. at 543. The Court explained that because the testimony regarding
Conyers’ first statement to the witness was introduced by the prosecution as an admission,
it was admissible under Rule 5-803(a)(1), which provides a hearsay exception for a
statement by a party opponent that is offered against the party. Id. at 544. When Conyers
sought to introduce his own statement, however, it was hearsay, and “[s]uch statements are
inherently suspect as being self-serving.” Id. at 544-45 (citation and internal quotation
marks omitted).
In the present case, as in Conyers, the portions of the phone calls that appellant
sought to introduce consisted of unrelated, subsequent conversations that did not explain
or correct any of appellant’s earlier statements in the calls introduced by the State. See
Newman v. State, 65 Md. App. 85, 96 (1985) (citations and internal quotation marks
omitted) (“[T]o be admissible, the remainder must not only relate to the subject matter, but
must also tend to explain and shed light on the meaning of the part already received or to
correct a prejudicially misleading impression left by the introduction of misleading
evidence.”).
With respect to the call of April 28, in which appellant stated that he was the one
who told S.S. to “come back down here,” that statement in no way clarified or explained
the meaning of his comments in the April 7 and April 11 calls, which indicated that,
18
approximately two to three weeks earlier, appellant did not want S.S. to come back to the
State. Indeed, it appears that by April 28th, appellant had changed his mind about keeping
S.S. out of State. As such, his later exculpatory statements constituted inadmissible, self-
serving hearsay. We are persuaded that the trial court did not abuse its discretion in
denying appellant’s request to introduce excerpts from the April 24, April 28, and July 5,
2016 recorded jail calls under the doctrine of verbal completeness.
Appellant argues in the alternative that the April 24, April 28, and July 5 phone calls
were admissible to impeach S.S. because they were inconsistent with her statement to Ms.
Liuzzi that appellant had tried to force her to have sex with someone. The State argues that
appellant’s argument is unpreserved because at trial, appellant argued generally that the
statements were prior inconsistent statements, but failed to specify that they were
inconsistent with her statement to Ms. Liuzzi that appellant had tried to force her to have
sex with someone.
Ordinarily, this Court will not consider “any issue ‘unless it plainly appears by the
record to have been raised in or decided by the trial court.”’ King v. State, 434 Md. 472,
479 (2013) (quoting Md. Rule 8-131(a)). By addressing only issues “‘raised in or decided
by the trial court,’ the Rule serves to prevent the unfairness that could arise when a party
raises an issue for the first time on appeal, thus depriving the opposing party from admitting
evidence relating to that issue at trial.” Wilkerson v. State, 420 Md. 573, 597 (2011)
(quoting Md. Rule 8-131 (a)).
At trial, defense counsel argued that the phone calls were being offered to show that
“[h]er statements [were] inconsistent with other statements that she previously made.”
19
Because appellant’s argument on appeal is substantially similar to the argument that he
made at trial, we conclude that the issue was raised in and decided by the trial court, and is
therefore preserved for review.
Turning to the merits, we perceive no abuse of discretion in the trial court’s
determination that the statements were not admissible as prior inconsistent statements.
S.S.’s statements in the April 24, April 28, and July 5, 2016 phone calls in which she
professed her love to appellant were not necessarily inconsistent with her earlier statement
to Ms. Liuzzi that appellant had tried to force her to have sex with someone. S.S. could
still love appellant despite the fact that he forced her to prostitute. Were we to determine
that S.S.’s statements in the jail calls were erroneously excluded, we are persuaded that the
exclusion of the statements in this case was harmless beyond a reasonable doubt. See
Dionas v. State, 436 Md. 97, 108 (2013) (quoting Dorsey v. State, 276 Md. 638, 659 (1976))
(stating that an error is harmless when a reviewing court is “satisfied that there is no
reasonable possibility that the evidence complained of - whether erroneously admitted or
excluded - may have contributed to the rendition of the guilty verdict”); accord Potts v.
State, 231 Md. App. 398, 408 (2016).
S.S.’s statement to Ms. Liuzzi that appellant had tried to force her to have sex with
someone was impeached by Detective Jerman’s testimony, in which he stated that S.S. had
informed him that appellant “never forces [her] to do anything.” Moreover, S.S.’s
statement that appellant forced her to prostitute was inconsistent with S.S.’s text message
to Ms. Asmani stating that she had lied to the police by telling them that appellant had
forced her to prostitute because she had acted “out of the heat” of a “moment of anger.”
20
Because S.S.’s exculpatory statements regarding appellant were introduced through other
witnesses, the jail calls were cumulative of other evidence on the subject. Accordingly,
the exclusion of the jail calls would not affect the outcome of the case. See Snyder v. State,
104 Md. App. 533, 564 (1995) (determining that although trial court should have excluded
hearsay testimony, the admission of the testimony “[was] not important” because it “merely
echoe[d]” other similar testimony to which appellant failed to object) (citing Changing
Point, Inc. v. Maryland Health Resources Planning Comm’n, 87 Md. App. 150, 172 (1991)
(holding that the issue of whether testimony should have been excluded was “not
important” because the testimony was merely cumulative)). In any event, even if the court
erred by excluding the April 24, April 28, and July 5, 2016 jail calls, any error in the
exclusion of that evidence was harmless beyond a reasonable doubt.
IV.
Appellant contends that the trial court abused its discretion in prohibiting the
defense from introducing evidence of S.S.’s alleged subsequent arrest for prostitution
because it was “relevant to the ultimate question of whether [appellant] was forcing his
girlfriend to have sex with another person or whether she was engaging in prostitution
independently.” Appellant further contends that the trial court’s exclusion of the evidence
deprived him of his right to present a complete defense.
During cross-examination of S.S.’s mother, appellant sought to establish that S.S.
had been arrested for prostitution subsequent to the March 3, 2016 incident. The State
objected to the question, and the court sustained the objection. At the ensuing bench
conference, defense counsel asserted that evidence of S.S.’s arrest for prostitution was
21
relevant because it tended to prove that she “was a prostitute on her own” because appellant
was incarcerated at the time of the alleged arrest. Defense counsel further argued that the
evidence was admissible pursuant to Maryland Rule 5-404(a)(2)(B), which provides:
Character of Victim. Subject to the limitations in rule 5-412,4 an accused may
offer evidence of an alleged crime victim’s pertinent trait of character. If the
evidence is admitted, the prosecutor may offer evidence to rebut it.
The State responded that the evidence was not admissible because it was not relevant:
There’s no issue with respect to whether or not she was a prostitute…This is
impermissible character smearing. I’d also note that, whether or not she was
prostituting at the direction of another individual, with a pimp, or not with a
pimp. And that’s really what’s at issue here, not this character attack, and
other irrelevant dates of all prostitution.
The trial court determined that S.S.’s alleged arrest for prostitution was not “relevant with
respect to character,” and refused to permit the defense to elicit evidence on the subject.
Generally, “evidence of a person’s character trait is not admissible to prove that the
person acted in accordance with the character or trait on a particular occasion.” Rule 5-
404(a)(1). But “evidence of an alleged crime victim’s pertinent trait of character” may be
admissible when that trait is relevant to a contested issue at trial. See Rule 5-404(a)(2)(B).
Evidence is relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence.” Rule 5-401. As a general rule, “all relevant evidence is
4
Rule 5-412 governs the admissibility of a victim’s sexual history in cases involving
charges of sex offense, sexual abuse of a minor, or sexual abuse of a vulnerable adult.
22
admissible,” and “[e]vidence that is not relevant is not admissible.” Rule 5-402. “In
reviewing a trial court’s determination that evidence is relevant and admissible, we apply
the de novo standard of review to the court’s conclusion of law that the evidence at issue
is or is not of consequence to the determination of the action.” Wagner v. State, 213 Md.
App. 419, 453 (2013) (citation and internal quotation marks omitted).
We discern no error in the trial court’s conclusion that the proffered evidence
relating to S.S.’s conduct subsequent to March 3, 2016 was not relevant. Evidence that
S.S. may have been arrested for prostitution months after the March 3, 2016 incident was
not relevant to the determination of whether appellant had forced her to prostitute or placed
her in the hotel for prostitution on March 3, 2016. Nor did the court’s ruling deprive
appellant of the right to present an effective defense. By this time, the jury had already
heard multiple references to the fact that S.S. was a prostitute. Because appellant’s
proffered evidence of S.S.’s character for prostitution was cumulative of other evidence
offered on that point, the exclusion of that evidence did not deprive appellant of his
constitutional right to present a complete defense.
Moreover, even if we were to determine that the evidence of S.S.’s alleged
subsequent arrest should have been admitted, we are persuaded that the exclusion of that
evidence in this case was harmless beyond a reasonable doubt. See Dove v. State, 415 Md.
727, 743-44 (2010) (citation and internal quotation marks omitted) (“In considering
whether an error was harmless, we also consider whether the evidence presented in error
was cumulative evidence. Evidence is cumulative when, beyond a reasonable doubt, we
are convinced that there was sufficient evidence, independent of the [evidence] complained
23
of, to support the appellant[’s] conviction.”). Consequently, because any error in excluding
the evidence was harmless beyond a reasonable doubt, appellant was not denied a fair trial
by the exclusion of the evidence.
V.
Appellant argues that the trial court abused its discretion in failing to “clearly
delineate” the elements of human trafficking in the jury instructions. The State responds
that appellant failed to preserve this claim for review because defense counsel did not
object after the court provided the human trafficking instructions to the jury, and even if
preserved, appellant’s claim fails on the merits.
A.
Preservation
At the end of the second day of trial, the following colloquy took place regarding
the proposed jury instructions:
THE COURT: Any comments on the proposed instructions?
[DEFENSE COUNSEL]: Yes. The proposed instructions from the State
don’t break out the elements of the offenses. Even the offenses that are left
[are] also combined as one. And we believe, particularly in light of the
instruction that they have to find guilt beyond a reasonable doubt with respect
to each and every element of the offense[,] [n]ot breaking out the elements is
prejudicial to the defendant, and we’d object to those.
Our version, Your Honor, contains – there are no pattern instructions for the
human trafficking, as Your Honor knows, we attempted, based on, as you
can see in our versions, what the elements of the offense are, and attempted
to give definition for those words that are not words of common
understanding, or even if they are words that the courts have previously
defined.
* * *
24
THE COURT: All right. Well, I mean it basically says what the statute is,
and the words are words that are subject to common interpretation, so I’ll
leave that as it is.
Appellant had proposed the following instructions regarding the human trafficking
counts:
Human Trafficking – Force – MD Code, Criminal Law § 11-303(b)(2)
[Appellant] is charged with Human Trafficking – Force. Human trafficking
– Force is the knowing taking or detention of another with the intent to use
force, threat and coercion to compel the other to perform a sexual act, sexual
contact, or vaginal intercourse.
In order to convict [appellant] of human trafficking – force, the State must
prove each of the following elements beyond a reasonable doubt:
1. [Appellant] knowingly;
2. took or detained another;
3. that, at the time [appellant] knowingly took or detained another,
[appellant] had the intent to use force, threat, and coercion; and
4. [Appellant], at the time he knowingly took or detained another, intended
to compel him or her to perform a sexual act, sexual contact, or vaginal
intercourse.
“Knowingly” is defined as having knowledge. A defendant acts knowingly
if he realized what he was doing, was aware of the nature of his conduct, and
did not act through mistake, accident or carelessness, or other innocent
reason. The State has the burden of proving knowledge beyond a reasonable
doubt. Knowledge can be established from all the surrounding facts and
circumstances. “Detain” means to hold or keep, as if in custody.
Human Trafficking – Place/Cause – MD Code, Criminal Law § 11-
303(a)(1)(ii)
[Appellant] is charged with the crime of Human Trafficking – Take/Cause.
Human Trafficking – Take/Cause is the knowing taking or causing of another
to be taken to any place for the purpose of prostitution.
25
In order to convict [appellant] of Human Trafficking – Take/Cause, the State
must prove each of the following elements beyond a reasonable doubt:
1. that [Appellant] knowingly;
2. placed, caused to be placed, or harbored another in a place; and
3. for the purpose of prostitution.
Here, “to place” means to put in or as if in a particular place or position. To
“harbor’ means to give shelter or refuge to. Prostitution means the
performance of a sexual act, sexual contact, or vaginal intercourse for hire.
“Knowingly,” as I have told you, is defined as having knowledge. A
defendant acts knowingly if he realized what he was doing, was aware of the
nature of his conduct, and did not act through mistake, accident, carelessness,
or other innocent reason. The State has the burden of proving knowledge
beyond a reasonable doubt. Knowledge can be established from all the
surrounding facts and circumstances.
The court declined to give appellant’s proposed human trafficking jury instruction,
instructing the jury on the human trafficking charges as follows:
The defendant is charged with the offense of human trafficking by force,
fraud, or coercion. In order to convict the defendant, the State must prove
that the defendant did knowingly take or detain [S.S.] with the intent to use
force, threat, or coercion to compel [her] to perform a sexual act, sexual
contact, or vaginal intercourse.
The defendant is charged with the offense of human trafficking, take cause.
In order to convict the defendant, the State must prove that the defendant did
place, cause to be placed, or harbor [S.S.] at 3 Research Boulevard, Room
201, for prostitution.
Following the court’s instructions to the jury, the court inquired of defense counsel
as follows:
THE COURT: And counsel, anything further at this point?
[DEFENSE COUNSEL]: No, Your Honor, subject to what we’ve said
before.
26
THE COURT: Very well. Mr., counsel, if you could just approach for a
minute.
(Bench conference follows:)
THE COURT: I just want to make it clear on the record that you aren’t
objecting to the instructions that I gave, with the previous arguments
that you’ve made.
[DEFENSE COUNSEL]: Yes. Thank you.
THE COURT: All right.
(Bench conference concludes.)
Following this conference, the court adjourned for the day. The State contends that, at this
point in the proceeding, appellant waived his objection to the jury instructions by expressly
acknowledging to the court that he had no objection to the human trafficking instruction as
provided to the jury.
On the following morning, however, before the trial resumed, and before the jury
was present, defense counsel addressed the court as follows:
[DEFENSE COUNSEL]: Yesterday, Your Honor, we brought up our
concern with the instructions on the substantive offenses of human
trafficking, that each element wasn’t identified, it was just the statute was
quoted in full. And as it, and we want to make clear what our objection is.
With respect to the assault, and now with respect to self-defense, the Court
breaks out the elements, one, two, three, four. One, two three on the assault,
for example. One, two, three, four on self-defense. And –
THE COURT: It’s in the Pattern Jury Instructions.
[DEFENSE COUNSEL]: Exactly. And there is no Pattern Jury Instruction
for human trafficking. That’s what causes the difficulty. We understand
that. But again, we want to make clear that our concern is two-fold on that:
one, the elements aren’t broke up, just as they are.
27
And if you look at page 2 of the instructions, Your Honor, Your Honor’s
page two talks about “each of the elements, as I will define them for you.”
And we think that it’s inconsistent with that instruction not to define each of
the elements in the human trafficking, as well as not defining the word
“knowingly.”
Then those are our concerns. And so if Your Honor—
THE COURT: You’ve made your point.
Objections to jury instructions must comply with Rule 4-325(e) which provides:
No party may assign as error the giving or the failure to give an instruction
unless the party objects on the record promptly after the court instructs the
jury, stating distinctly the matter to which the party objects and the grounds
of the objection. Upon request of any party, the court shall receive objections
out of the hearing of the jury. An appellate court, on its own initiative or on
the suggestion of a party, may however take cognizance of any plain error in
the instructions, material to the rights of the defendant, despite a failure to
object.
(Emphasis added).
In order to properly preserve this issue for appellate review, appellant was required
to promptly object following the court’s instructions to the jury. See Stabb v. State, 423
Md. 454, 464-65 (2011). “The general rule is that the failure to object to a jury instruction
at trial results in a waiver of any defects in the instruction, and normally precludes further
review of any claim of error relating to the instruction.” Alston v. State, 414 Md. 92, 111
(2010) (quoting State v. Rose, 345 Md. 238, 245 (1997)). “A principal purpose of Rule 4-
325(e) ‘is to give the trial court an opportunity to correct an inadequate instruction’ before
the jury begins deliberations.” Alston, 414 Md. at 111 (quoting Bowman v. State, 337 Md.
65, 69 (1994)). “The timing of the objection is important because it should give the trial
court an opportunity to correct the instruction in light of a well-founded objection.” Stabb,
28
423 Md. at 465 (citations omitted). Considerations of fairness and judicial efficiency
generally require that all challenges that a party wishes to make to a trial court's ruling,
action, or conduct “be presented in the first instance to the trial court so that (1) a proper
record can be made with respect to the challenge, and (2) the other parties and the trial
judge are given an opportunity to consider and respond to the challenge.” Chaney v. State,
397 Md. 460, 468 (2007).
Although defense counsel initially indicated at the end of the second day of trial that
he was not objecting to the instructions as given, on the following morning, he changed
course. Before the jury was brought in, defense counsel specifically objected to the human
trafficking jury instructions given by the court. Defense counsel’s objection met the
objective of the preservation requirement, by providing the prosecution and the court with
an opportunity to consider and correct the instruction before the parties began their closing
arguments. Because trial proceedings had not yet resumed, the timing of the objection was
sufficient to preserve this argument for our review.
B. Human Trafficking Jury Instructions
Appellant contends that the trial court abused its discretion in refusing to give “more
detailed explanations of human trafficking, because the court’s instructions impermissibly
posed a very high risk that the jury would misunderstand these crimes and/or fail to ensure
that the State proved each and every element of the crimes.” In Jarrett v. State, 220 Md.
App. 571, 583-84 (2014), we set forth the applicable standard of review of a trial court’s
decision regarding requested jury instructions:
29
Maryland Rule 4-325(c) provides that “[t]he court may, and at the request of
any party shall, instruct the jury as to the applicable law[.]” We review “a
trial court’s refusal or giving of a jury instruction under the abuse of
discretion standard.” Stabb v. State, 423 Md. 454, 465 (2011). The Court of
Appeals has explained:
We consider the following factors when deciding whether a
trial court abused its discretion in deciding whether to grant or
deny a request for a particular jury instruction: (1) whether the
requested instruction was a correct statement of the law; (2)
whether it was applicable under the facts of the case; and (3)
whether it was fairly covered in the instructions actually given.
Id. (citing Gunning v. State, 347 Md. 332, 351 (1997)). “The burden is on
the complaining party to show both prejudice and error.” Tharp v. State, 129
Md. App. 319, 329 (1999), aff’d, 362 Md. 77 (2000).
Applying these three factors, we conclude that the jury instructions were a correct
statement of law, applicable under the facts of the case, and fairly covered in the
instructions given. The trial court’s human trafficking instructions as to the “taking and
placing” and “force” modalities closely tracked the language of the statute and included all
of the elements of the offenses.
At the time of trial, no pattern jury instructions were available for human
trafficking. But subsequently, in 2017, the Maryland State Bar Association issued a pattern
jury instruction for the offense of human trafficking by the “taking and placing” modality.
Maryland State Bar Ass’n, Maryland Criminal Pattern Jury Instruction 4:17.15 at 719
(MSBA 2d ed. 2012, 2017 Supp.) (“MPJI-Cr”).5 The pattern jury instruction, like the
5
MPJI-Cr 4:17.15 provides:
Prostitution – Taking or Placing (§11-303(a)(1)(i)-(ii))
30
instruction given by the trial judge, mirrors the language of CL § 11-303(a)(1)(ii), further
indicating that the instruction given by trial judge was a correct statement of the law. See
Johnson v. State, 223 Md. App. 128, 152, cert. denied, 445 Md. 6 (2015) (“it is well-
established that a trial court is strongly encouraged to use the pattern jury instructions”).
As to the third factor, the court instructed the jury on reasonable doubt as follows:
The State has the burden of proving the guilt of the defendant beyond a
reasonable doubt. This means that the State has the burden of proving,
beyond a reasonable doubt, each and every element of the crime charged.
The elements of a crime are the component parts of the crime about which I
will instruct you shortly. This burden remains on the State throughout the
trial.
In Carroll v. State, 428 Md. 679 (2012), the Court of Appeals addressed the issue
of whether a trial court must instruct the jury that the reasonable doubt standard must be
applied to each element of each offense. Id. at 688. The Court determined that an
instruction that the reasonable doubt standard must be applied to each element of each
offense was not required, stating, “we are, in the end, not persuaded that an otherwise-
correct reasonable doubt instruction is rendered constitutionally deficient by the omission
of language that each element of the offense charged must be proven beyond a reasonable
The defendant is charged with the crime of Human Trafficking. In order
to convict the defendant of the crime of human trafficking, the State must
prove:
(1) that the defendant knowingly [took (name) to] [caused (name) to be
taken to] [placed (name) in] a place; and
(2) that (name) was [taken to] [placed in] that place for prostitution.
“Prostitution means a sexual act, sexual contact, or vaginal intercourse
for hire.”
31
doubt.” Id. at 692. In the context of the instructions at issue in Carroll, the Court
explained:
The detailed description of the concept of proof beyond a reasonable doubt
set forth in that pattern instruction conveyed to the jurors that they must
evaluate guilt based on that standard of proof. Then, in each of the separate
instructions on the offenses charged, the court referred to the burden of proof
when introducing the elements of each charged offense with the words “the
State must prove” those elements. Read together, the reasonable doubt
instruction (emphasizing the meaning and importance of that standard of
proof) and the repeated message in every instruction that the State “must
prove” the elements of each charged offense adequately imparted to the jury
the mandate that the State must prove each element beyond a reasonable
doubt.
Id. at 690. In the present case, as in Carroll, the trial court referred to the State’s burden
of proof prior to explaining the elements of each of the charges, by stating, “in order to
convict [appellant] of [the crimes charged], the State must prove that [he]…[.]” We
conclude in this case, as the Court did in Carroll, that the court’s instructions, “read as a
whole,” sufficiently instructed the jury that the State was required to prove every element
of the offenses beyond a reasonable doubt. See id. at 689 (quoting Fleming v. State, 373
Md. 426, 433 (2003)) (“[t]he ‘instructions are reviewed in their entirety’ and ‘[r]eversal is
not required where the jury instructions, taken as a whole, sufficiently protect the
defendant’s rights … [.]’”).
In the context of appellant’s request that the court separately define the terms,
“place,” “harbor,” “prostitution,” and “knowingly,” we discern no abuse of discretion in
the trial court’s determination that these terms required no further definition. When the
meaning of a term is “implicit and clear,” a trial court’s decision of whether to define the
term in an instruction is discretionary. See White v. State, 23 Md. App. 151, 164 (1974)
32
(holding no abuse of discretion in trial judge’s rejection of defendant’s proposed
instructions on the jury’s role as judge of law and fact, and the necessary absence of consent
in a robbery); see also In re Appeal No. 180, 278 Md. 443, 450-51 (1976) (quoting The
People v. Rice, 383 Ill. 584, 588 (1943)) (“The definitions of ‘solicit’ and ‘prostitution’ are
so well and universally understood as to require no further definition in the statute or charge
to set forth the elements necessary to constitute the offense intended to be punished.”). We
conclude that the trial court did not abuse its discretion in declining to provide appellant’s
proposed jury instructions and proposed defined terms.
In any event, even if the court erred by failing to give appellant’s requested
instructions, any error was harmless. See Williams v. State, 322 Md. 35, 47 (1991) (error
in failing to give a requested jury instruction may be harmless). Appellant’s admission that
he “brought” S.S. to the hotel for his “reason,” that he knew that she had engaged in
prostitution while there, that he attempted to keep her from leaving the room, and that he
had struck her in the face, coupled with the connection between his email address and her
Backpage.com advertisement, substantiated that the jury’s verdicts were strongly
supported by the evidence. In our view, the trial court’s failure to give the requested jury
instructions did not affect the outcome of the case, and even if it was error not to give the
instructions, it was harmless.
JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.
33