Westley v. State

Darrelled Westley v. State of Maryland, No. 2474, September Term, 2019. Opinion by
Fader, C.J.
SEXUAL OFFENSES — EVIDENCE — RAPE SHIELD STATUTE —
APPLICATION TO NONCONSENSUAL CONDUCT
Maryland’s Rape Shield Statute, § 3-319 of the Criminal Law Article, contains two
subparts. Subsection 3-319(a) is an absolute bar to the introduction of reputation or opinion
evidence concerning a victim’s reputation for chastity or abstinence. Subsection 3-319(b)
limits the admissibility of evidence of specific instances of a victim’s prior sexual conduct.
Subsection 3-319(b) applies regardless of whether the victim’s prior sexual conduct at issue
was willing or unwilling.
SEXUAL OFFENSES — EVIDENCE — RAPE SHIELD STATUTE —
EXCEPTIONS
Evidence excluded by the Rape Shield Statute may nonetheless be admissible if its
exclusion would violate a criminal defendant’s constitutional rights.
SEXUAL OFFENSES — CONSTITUTIONAL RIGHTS — DUE PROCESS AND
CONFRONTATION CLAUSES — SEXUAL INNOCENCE INFERENCE
THEORY
In Maryland, evidence of a child victim’s prior sexual abuse that is excluded by the Rape
Shield Statute may not be admitted to counter a presumption of sexual innocence unless:
(1) the court determines that the facts of the case give rise to a presumption of the victim’s
sexual innocence that if unrebutted might lead a reasonable jury to conclude that the
defendant committed the crime at issue; (2) the proffered evidence would rebut that
presumption; and (3) the inflammatory or prejudicial nature of the evidence does not
outweigh its probative value.
Circuit Court for Wicomico County
Case No. C-22-CR-18-000440
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2474
September Term, 2019
______________________________________
DARRELLED WESTLEY
v.
STATE OF MARYLAND
______________________________________
Fader, C.J.,
Ripken,
Moylan, Charles E., Jr.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Fader, C.J.
______________________________________
Filed: July 2, 2021
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-07-06
12:25-04:00
Suzanne C. Johnson, Clerk
In a criminal trial of a sex crime, Maryland’s rape shield statute, § 3-319 of the
Criminal Law Article of the Maryland Code (2021 Repl.) (the “Rape Shield Statute”),
(1) precludes the introduction of evidence concerning a victim’s reputation for chastity or
abstinence and (2) limits the introduction of evidence concerning specific instances of a
victim’s prior sexual conduct to evidence that is relevant, material, not more inflammatory
or prejudicial than probative, and falls within one of four categories of evidence bearing
special relevance to a defendant’s case. The General Assembly’s purposes in limiting
admissibility of such evidence were to protect sex crime victims from the psychological
trauma of being unnecessarily confronted with tangential and potentially harmful evidence,
to avoid improperly shifting the focus of the trial to the victim, and to thereby encourage
victims to report sex crimes. In this appeal, we are called upon to determine whether the
Rape Shield Statute’s protections extend to a 12-year-old victim of sexual abuse so as to
preclude her alleged abuser from introducing at his criminal trial evidence that the victim
had suffered another incident of sexual abuse, by a different abuser, a year earlier.
Darrelled Westley, the appellant, was convicted of multiple counts of sexual abuse
of a minor, other sex offenses, and assault against his wife’s niece (“Victim”), who was 12
years old at the time of the relevant events.1 Mr. Westley argues that the circuit court erred
by excluding evidence of Victim’s prior sexual abuse, which he contends was necessary to
rebut the jury’s natural presumption that Victim would not have possessed sufficient sexual
1
To preserve the anonymity of the minor victim, we will refer to her as “Victim”
and to some of her relatives according to their relationships to her. See State v. Johnson,
440 Md. 228, 232 n.1 (2014).
knowledge to fabricate her allegations against him. We hold that the court neither erred
nor abused its discretion in excluding the evidence because it was barred by the Rape Shield
Statute and unnecessary to protect Mr. Westley’s constitutional rights. In doing so, we
conclude that the Rape Shield Statute’s limitation on the admission of evidence of specific
instances of a victim’s prior sexual conduct extends to both willing and unwilling prior
sexual conduct, and that the facts presented here did not raise a presumption of sexual
innocence that this evidence was necessary to rebut.
Mr. Westley also contends that even if the court’s decision to exclude the evidence
was correct initially, the court erred by not permitting its introduction later based on the
State having opened the door and pursuant to the doctrine of verbal completeness. Because
we do not agree that the State opened the door or that the doctrine of verbal completeness
mandated admission of the challenged evidence, we discern no error or abuse of discretion
in the court’s rulings excluding it.
Finally, Mr. Westley asks this Court to reverse his conviction for child abuse by a
person responsible for supervising a minor because of insufficient evidence. We will hold
that the evidence was sufficient for a reasonable jury to conclude beyond a reasonable
doubt that Mr. Westley was a person responsible for supervising Victim. Accordingly, we
will affirm all of Mr. Westley’s convictions.
BACKGROUND
Victim’s Stay with the Westleys
In May 2018, Victim’s mother (“Mother”) asked her sister, Jessica Westley, to take
care of Mother’s five children for two weeks that June, while Mother and her husband
2
would both be incarcerated. Among the five siblings were Victim and her 11-year-old
brother (“Brother”). Ms. Westley, who had cared for the children previously, discussed
the request with her husband, Mr. Westley, and the couple then agreed to the two-week
stay.
At the time, the Westleys were living in a small room, which one witness described
as being half the size of the court’s jury box, on the second floor of a boarding house in
Salisbury. The room held, at various times, an air mattress, television, and dresser. The
Westleys, the children, and an uncle—Ivan Conway, Ms. Westley’s and Mother’s
brother—all slept together in the room. It was Mother’s understanding that the Westleys
would care for the children during this period, including taking them for free meals at local
churches or by obtaining food from a local shelter pantry.
When Mother left prison after two weeks, she retrieved her children. At that time,
Mr. Conway conveyed something to Mother that prompted her to contact Stephanie
Fleming, a social worker at the Child Advocacy Center (“CAC”) with whom the family
was already familiar, and then bring Victim to speak with Ms. Fleming. The accusations
Victim made in those interviews led to Mr. Westley’s arrest and to the State charging him
with two counts of sex abuse of a minor and one count each of second-degree rape, sex
offense in the third degree, sex offense in the fourth degree, and assault in the second
degree.
Trial Testimony
The evidence at trial consisted of testimony by Victim, Mother, Brother,
Mr. Conway, and Ms. Fleming, as well as redacted excerpts of two recorded interviews of
3
Victim conducted by Ms. Fleming. The redacted excerpts from the interviews were played
for the jury and transcripts were also provided. Mr. Westley did not call any witnesses.
Victim testified that during her stay with the Westleys, she, Brother, and another
sibling attended a day camp but were otherwise in the care of the Westleys. Beginning “[a]
couple days after” arrival, at night while everyone else was asleep, Mr. Westley took off
her clothes, touched her “butt,” and used “his mouth” to touch her “private” and “boobs[.]”
She also said that he used his penis to touch the “outside” of her “private,” his hand to
touch the “inside” and “outside” of her “private,” and that sometimes the touching would
occur when he followed her to the bathroom. In excerpts from the interviews with
Ms. Fleming, Victim stated that the touching had occurred “[m]ore than ten” times,
Mr. Westley had touched her “butt” with his penis once, and Mr. Westley’s penis was
brown and white “stuff was coming out” of it.
When asked who watched her children while she was in jail, Mother testified that it
was “Jessica Westley and Darrelled Westley.” She testified that her sister had been around
the children for their entire lives, that she was familiar with caring for them, and that the
children had known Mr. Westley since he and Ms. Westley married several months before
their stay. Before Ms. Westley agreed that the children could stay with her and Mr.
Westley, she “talked it over with her husband, so he knew about it, too.” Mother expected
the children to be cared for by both her sister and Mr. Westley.
Brother testified that he once saw Mr. Westley “touching on” Victim in the room
while the others were sleeping. He observed Mr. Westley touching Victim’s “butt” and
4
“titties” while she “was kind of awoke . . . [a]nd kind of asleep.” The day after he observed
that conduct, Brother reported it to Mr. Conway.
Mr. Conway testified that he had slept on the floor in the same room with the
Westleys and the children, and, on at least one occasion, he saw Victim go to the bathroom
with Mr. Westley following shortly after. Mr. Conway described how one day after work,
Brother told him about Mr. Westley’s conduct with Victim. Mr. Conway then decided to
stay at the residence “the entire time after that information came out because [Victim] was
afraid to be alone during the day.” Mr. Conway confronted Mr. Westley about the
accusations but was satisfied by Mr. Westley’s assurances that nothing had happened.
Victim’s description of Mr. Westley’s conduct varied between her trial testimony
and her recorded statements to Ms. Fleming. For example, although Victim testified at
trial that Mr. Westley had touched the “outside” of her “private” with his penis and
described Mr. Westley touching her in the bathroom, in her interviews with Ms. Fleming
the only body part she mentioned Mr. Westley touching with his penis was her “butt,” and
she described incidents occurring only on the bedroom floor. And at one CAC interview,
but not at trial, Victim stated that Mr. Westley had put his tongue inside her vagina “[e]very
night.”
At the conclusion of the State’s case, the court denied Mr. Westley’s motion for
judgment of acquittal on all counts but determined that there was insufficient evidence to
5
instruct the jury that it could premise a conviction for second-degree rape on a use of force.2
The jury returned a verdict of guilty on all counts except for second-degree rape.
Excluded Evidence of Prior Sexual Abuse
Before trial, the State moved in limine to preclude Mr. Westley from presenting
evidence about prior sexual abuse of Victim by a different uncle, Charles Darnell Quails.
The prosecutor stated that the disputed evidence would show that Mr. Quails abused
Victim and Mr. Quails’s daughter, another minor, over the course of several weekends
during the summer before Mr. Westley’s alleged acts, when Victim was 11 years old.
Before her stay with the Westleys, Victim had met with Ms. Fleming at the CAC and
reported that Mr. Quails had touched her breasts and private parts, rubbed his penis on her
bottom, used his mouth on her, and put his penis inside her private parts.3
In its written motion, the State argued that the Rape Shield Statute barred
presentation of the prior abuse evidence. However, in arguments before the motions court,
the State retreated from its reliance on the Rape Shield Statute, stating that it had come to
consider the statute inapplicable to prior nonconsensual sexual conduct based on this
Court’s holding in Shand v. State, 103 Md. App. 465, 480-81 (1995) (“Shand I”), aff’d,
341 Md. 661 (1996). Nonetheless, the State argued that the statute’s spirit should guide
the court and that the evidence should be excluded under traditional evidentiary rules
2
A charge of second-degree rape requires proof of vaginal intercourse or a sexual
act combined with at least one of three factors, one of which is the use of force. Crim. Law
§ 3-304(a)(1). Another is where the victim is under 14 years old and more than four years
younger than the perpetrator. Id. § 3-304(a)(3). The court permitted the charge to go
forward based on the latter factor.
3
Mr. Quails’s criminal case was pending at the time of Mr. Westley’s trial.
6
because it was irrelevant and the risk of unfair prejudice substantially outweighed any
possible probative value.
Mr. Westley agreed that the Rape Shield Statute was inapplicable. He further
argued that the testimony was admissible under traditional evidentiary rules and was
essential to his defense. He contended that based on the similar allegations against the two
men, the evidence would establish that Victim had an independent basis of sexual
knowledge on which she could have relied to formulate the graphic allegations against
Mr. Westley, making it more likely that she fabricated her present accusations.
The motions court granted the State’s motion and excluded the evidence. It
accepted the parties’ shared position that the Rape Shield Statute did not apply to
nonconsensual acts. The court concluded, however, that the proffered evidence was not
relevant and even if it were, that the danger of unfair prejudice substantially outweighed
any probative value. The court acknowledged the possibility that the evidence could be
admitted at trial if “there’s evidence presented that opens the door for [i]t to be used,” but
that would be a question for the trial judge.
During trial, Mr. Westley twice moved to admit the excluded evidence based on the
State’s introduction of evidence that Victim had met with Ms. Fleming before the incident
involving Mr. Westley. The trial court denied both motions. Background relating to those
motions and the court’s disposition of them will be provided below.
Following his convictions, Mr. Westley filed this timely appeal.
7
DISCUSSION
Mr. Westley challenges the court’s grant of the State’s motion in limine to exclude
evidence about Victim’s prior abuse as well as the trial court’s continued refusal to admit
the same evidence after the State allegedly opened the door. Separately, he argues that the
evidence was insufficient to support his conviction for child abuse by a person responsible
for supervising a minor. We discern no error or abuse of discretion in the court’s
evidentiary rulings and conclude that the evidence was sufficient to sustain his conviction.
Accordingly, we will affirm.
I. MARYLAND’S RAPE SHIELD STATUTE APPLIES TO EVIDENCE OF PRIOR
ABUSE.
Mr. Westley, the State, and ultimately the circuit court all agreed that pursuant to
this Court’s decision in Shand I, Maryland’s Rape Shield Statute is applicable only to
evidence of prior willing sexual conduct and that the statute was therefore inapplicable to
the evidence of sexual abuse at issue here. On appeal, the State argues that the Rape Shield
Statute is not so limited and that it provides the proper framework for analyzing the
admissibility of the disputed evidence. We agree that the Rape Shield Statute applies. As
we will explain, to the extent Shand I could be interpreted as Mr. Westley does, the
reasoning of that decision did not survive the Court of Appeals’ further review in that case.
See Shand v. State, 341 Md. 661 (1996) (“Shand II”). First, however, we must begin with
an exploration of the Rape Shield Statute itself and its relevant legislative history.
Ultimately, based on our review of Shand I and II, the statute, and its legislative history,
8
we will conclude that the Rape Shield Statute applies to a victim’s prior sexual conduct
regardless of whether such conduct was willing.4
Maryland’s Rape Shield Statute, currently codified at § 3-319 of the Criminal Law
Article, establishes rules for the admission of certain types of evidence in criminal
prosecutions for sex crimes.5 The statute, originally enacted in 1976 and most recently
amended in 2003, addresses two types of evidence. First, subsection (a) provides an
absolute bar on the admission of “[e]vidence relating to a victim’s reputation for chastity
or abstinence and opinion evidence relating to a victim’s chastity or abstinence[.]” Second,
subsection (b) addresses “[e]vidence of a specific instance of a victim’s prior sexual
conduct,” which is admissible only if the judge finds that:
(1) the evidence is relevant;
(2) the evidence is material to a fact in issue in the case;
(3) the inflammatory or prejudicial nature of the evidence does not
outweigh its probative value; and
(4) the evidence:
(i) is of the victim’s past sexual conduct with the defendant;
4
As a general matter, it would seem to be beyond reasonable dispute that a
nonconsensual sexual encounter constitutes “sexual conduct” by someone—at a minimum,
by the perpetrator. The question with which we are concerned is whether such an act
constitutes the “victim’s . . . sexual conduct.”
5
The statute applies in prosecutions for all sexual crimes specified in Subtitle 3 of
Title 3 of the Criminal Law Article (including, among others, first-degree and
second-degree rape, third-degree and fourth-degree sexual offenses, first-degree and
second-degree attempted rape, unnatural or perverted sexual offenses, incest, and sexual
solicitation of a minor), as well as for sexual abuse of a minor, sexual abuse of a vulnerable
adult, and lesser included offenses. See Crim. Law §§ 3-319(a), (b).
9
(ii) is of a specific instance of sexual activity showing the source
or origin of semen, pregnancy, disease, or trauma;
(iii) supports a claim that the victim has an ulterior motive to
accuse the defendant of the crime; or
(iv) is offered for impeachment after the prosecutor has put the
victim’s prior sexual conduct in issue.
Crim. Law § 3-319(b). The statute thus treats evidence concerning a victim’s reputation
for chastity or abstinence—which is always prohibited—differently from evidence of
specific instances of the victim’s prior sexual conduct—which is admissible under limited
circumstances.
Here, the determination of whether evidence of Victim’s prior abuse fell within the
scope of subsection (b) of the Rape Shield Statute turns on whether it is evidence of her
“prior sexual conduct.” Resolving that question is a matter of statutory interpretation, the
goal of which “is to discern and carry out the intent of the Legislature.” Aleman v. State,
469 Md. 397, 421 (2020). To achieve that goal, “[w]e begin with an examination of the
text of a statute within the context of the statutory scheme to which it belongs, then
typically review the legislative history to confirm conclusions or resolve ambiguities, and
finally may consider the consequences of alternative interpretations of the statute.” Id.In our interpretation, we “first look[] to the normal, plain meaning of the language
of the statute, reading the statute as a whole to ensure that no word, clause, sentence or
phrase is rendered surplusage, superfluous, meaningless or nugatory.” Berry v. Queen, 469
Md. 674, 687 (2020) (quoting Brown v. State, 454 Md. 546, 551 (2017)). In so doing,
“[o]ur inquiry is not confined to the specific statutory provision at issue on appeal. Instead,
10
‘[t]he plain language must be viewed within the context of the statutory scheme to which
it belongs[.]’” Berry, 469 Md. at 687 (internal citation and some quotation marks omitted)
(quoting Johnson v. State, 467 Md. 362, 372 (2020)). That context may include the
statute’s “relationship to earlier and subsequent legislation, and other material that fairly
bears on the fundamental issue of legislative purpose or goal, which becomes the context
within which we read the particular language before us in a given case.” Berry, 469 Md.
at 687 (quoting Blackstone v. Sharma, 461 Md. 87, 114 (2018)).
A statute may be ambiguous in two ways. One is “when the ‘words of a statute are
. . . subject to more than one reasonable interpretation[.]’” Blackstone, 461 Md. at 113
(quoting State v. Bey, 452 Md. 255, 266 (2017)). The other is “where the words are clear
and unambiguous when viewed in isolation, but become ambiguous when read as part of a
larger statutory scheme[.]” Id. In either case, “a court must resolve the ambiguity by
searching for legislative intent in other indicia,” id., which may include:
the structure of the statute, including its title; how the statute relates to other
laws; the legislative history, including the derivation of the statute, comments
and explanations regarding it by authoritative sources during the legislative
process, and amendments proposed or added to it; the general purpose behind
the statute; and the relative rationality and legal effect of various competing
constructions.
Lillian C. Blentlinger, LLC v. Cleanwater Linganore, Inc., 456 Md. 272, 295 (2017)
(quoting Bellard v. State, 452 Md. 467, 482 (2017)). In addition, we must “consider the
consequences resulting from one meaning rather than another, and adopt that construction
which avoids an illogical or unreasonable result, or one which is inconsistent with common
11
sense.” Blackstone, 461 Md. at 114 (quoting Spangler v. McQuitty, 449 Md. 33, 50
(2016)).
A. Plain Meaning of Criminal Law § 3-319
We begin with the text. The Rape Shield Statute does not define “prior sexual
conduct[.]” We therefore look to dictionary definitions, which provide “an essential
starting point because the ‘ordinary, popular understanding of the English language dictates
interpretation of [the statute’s] terminology.’” Berry, 469 Md. at 688-89 (alteration in
original) (quoting Johnson, 467 Md. at 372); see also Couret-Rios v. Fire & Police
Employees’ Ret. Sys. of City of Baltimore, 468 Md. 508, 530 n.8 (2020) (“Although
dictionary definitions do not provide dispositive resolutions of the meaning of statutory
terms, dictionaries do provide a useful starting point for determining what statutory terms
mean, at least in the abstract, by suggesting what the legislature could have meant by using
particular terms.” (quoting Marriott Emps. Fed. Credit Union v. Motor Vehicle Admin.,
346 Md. 437, 447 (1997))).
The word “prior,” as relevant here, means “earlier in time or order.” Prior,
Merriam-Webster’s Collegiate Dictionary 988 (11th ed. 2003).
The word “sexual” is not defined independently in the statute, but Criminal Law
§ 3-301, which lists definitions applicable to all of Subtitle 3, sheds light on the General
Assembly’s understanding of the modifier by defining the terms “sexual act” and “sexual
contact.” A “sexual act,” as defined in § 3-301(d), means analingus, cunnilingus, fellatio,
anal intercourse, or an act involving penetration of a genital opening or anus that is
12
performed for sexual arousal, gratification, or abuse.6 “Sexual contact,” as defined in
§ 3-301(e), is “an intentional touching of the victim’s or actor’s genital, anal, or other
intimate area for sexual arousal or gratification, or for the abuse of either party.” These
definitions are consistent with those provided in dictionaries for the word “sexual,” such
as “relating to the instincts, physiological processes, and activities connected with physical
attraction or intimate physical contact between individuals[.]” Sexual, New Oxford
American Dictionary 1601 (3d ed. 2010); see also Sexual, Merriam-Webster’s Collegiate
Dictionary 1141 (“of, relating to, or associated with sex or the sexes” and “having or
involving sex”).
“Conduct” is also not defined in the statute. Black’s Law Dictionary defines
“conduct” as “[p]ersonal behavior, whether by action or inaction, verbal or nonverbal[.]”
Conduct, Black’s Law Dictionary 369 (11th ed. 2019). Black’s also provides several
additional definitions with modifiers, including “active conduct,” which is “[b]ehavior that
involves a person doing something by exerting will on the external world,” and “passive
conduct,” which is “[b]ehavior that does not involve exerting will on the external world.”
Id. at 369-70. Other dictionaries define conduct, when used as a noun, as “the manner in
which a person behaves, esp[ecially] on a particular occasion or in a particular context,”
Conduct, New Oxford American Dictionary 362, or as “a mode or standard of personal
6
The statutory definition of “sexual act” expressly excludes “vaginal intercourse.”
Crim. Law § 3-301(d)(2). That is not because the General Assembly does not consider
vaginal intercourse to be a sexual act, but because it lists vaginal intercourse separately in
statutes criminalizing sexual offenses. See, e.g., id. § 3-303(a)(1)(i) & (ii) (criminalizing
both nonconsensual vaginal intercourse and a nonconsensual sexual act with another by
force or threat of force).
13
behavior esp[ecially] as based on moral principles,” Conduct, Merriam-Webster’s
Collegiate Dictionary 259. Those definitions of “conduct” include behavior that can be
either active or passive.
Because definitions of “conduct” generally incorporate “behavior,” we also
consider definitions of that word. Behavior is defined as “the way in which one acts or
conducts oneself, esp[ecially] toward others,” “the way in which an animal or person acts
in response to a particular situation or stimulus,” Behavior, New Oxford American
Dictionary 150; or “the manner of conducting oneself,” “anything that an organism does
involving action and response to stimulation,” and “the response of an individual, group,
or species to its environment,” Behavior, Merriam-Webster’s Collegiate Dictionary 111.
These definitions include actions engaged in both volitionally and in response to external
stimuli, thus suggesting that the concept encompasses both willing and unwilling actions.
In analyzing the plain language of a statute, we do not view the words in a vacuum.
Instead, “[t]he plain language ‘must be viewed within the context of the statutory scheme
to which it belongs, considering the purpose, aim or policy of the Legislature in enacting
the statute.’” Johnson, 467 Md. at 372 (quoting State v. Johnson, 415 Md. 413, 421
(2010)). These “become[] the context within which we read the particular language before
us in a given case.” Neal v. Baltimore City Bd. of Sch. Comm’rs, 467 Md. 399, 415 (2020)
(quoting Blackstone, 461 Md. at 114). Accordingly, we find it notable that the Rape Shield
Statute addresses two different categories of evidence. Subsection (a) concerns general
reputation or opinion evidence concerning a victim’s chastity or abstinence, which the
General Assembly has determined to be categorically inadmissible. We can presume that
14
such evidence, which is not necessarily tied to any specific instance of conduct, would
necessarily be limited in scope to a victim’s reputation for engaging in sexual activity
willingly, because unwilling engagement would not reflect at all on chastity or abstinence.
Subsection (b), by contrast, is concerned not with reputation or opinion evidence
but with evidence of the occurrence of “a specific instance of a victim’s prior sexual
conduct,” which we will refer to as “specific instances evidence.” Structurally, subsection
(b) stands independent of subsection (a) in that it addresses a different type of evidence.7
The two subsections are complementary, to be sure, but they do not overlap. Unlike
subsection (a), there is nothing inherent in the provisions of subsection (b) that would limit
its scope to willing conduct. To the contrary, some of the enumerated instances in which
evidence of sexual conduct may be admitted pursuant to the statute necessarily apply
without regard to whether the prior conduct was willing, including a “specific instance of
sexual activity showing the source or origin of semen, pregnancy, disease, or trauma[.]”
Crim. Law § 3-319(b)(4)(ii). All four of these “source or origin” rationales can be the
result of unwilling or willing sexual activity. Trauma, moreover, would appear to be even
more likely to be associated with unwilling activity. Similarly, an attempt to cover up an
unwilling, prior sexual assault by a family member or friend could be the source of a
victim’s “ulterior motive to accuse the defendant of the crime[.]” See id. § 3-319(b)(4)(iii).
Of course, that the exceptions to the general prohibition against introduction of specific
7
As we will discuss below, when the Rape Shield Statute was initially enacted,
these two provisions appeared in separate sentences within the same paragraph.
Nonetheless, this court interpreted them as independent provisions. See Lucado v. State,
40 Md. App. 25, 32-33 (1978).
15
instances evidence could apply equally to willing and unwilling sexual activities does not
mean that the prohibition itself necessarily covers both types of activities, but it is
significant that nothing in the language or structure of subsection (b) itself is indicative of
an intent to limit the prohibition only to evidence of willing engagement in sexual activities.
It is also notable that § 3-319(b)(4)(ii) uses the phrase “sexual activity” to identify
the scope of actions covered by that exception. Although that term is not separately defined
in the statute, the term “sexual act” is defined to include acts that can be engaged in
willingly or unwillingly. Id. § 3-301(d). In Shand II, the Court of Appeals placed
significance on the General Assembly’s use of different terms in the statute, including
“sexual contact,” “sexual activity,” and “sexual conduct.” 341 Md. at 676. The Court
observed that “sexual conduct” was a “more general concept” than “sexual activity,” id. at
675-76, and concluded that “[a]t a minimum, we do no violence to the legislative intent . . .
when we construe ‘sexual conduct’ to embrace a wider range of activity than ‘physical
contact,’” id. at 677. Because the narrower term, “sexual activity,” clearly can include
nonconsensual activity, there is no logical reason why the “more general” term, “sexual
conduct,” should be read as more restrictive when it comes to consent.
Read in conjunction with the context and structure of § 3-319, the plain language of
the statute suggests that “prior sexual conduct” is not limited only to willing sexual
conduct. Nonetheless, we will turn next to consider the applicable legislative history.
B. Legislative History
The Rape Shield Statute was originally enacted in 1976 primarily in response to trial
courts of the time sometimes admitting evidence of a victim’s lack of chastity in rape cases
16
when consent was a defense. See Johnson v. State, 332 Md. 456, 464 (1993) (listing
examples of such cases, including Giles v. State, 229 Md. 370, 379-80 (1962), vacated and
remanded on other grounds, 386 U.S. 66 (1967), and Humphries v. State, 227 Md. 115,
121 (1961)). The Court of Appeals subsequently identified two purposes of the Rape
Shield Statute as: (1) “to protect rape victims from unscrupulous defense attorneys who
try to shift the focus away from their clients and onto the victims”; and (2) “to encourage
more victims to report the crimes and help bring rapists to justice.” White v. State, 324
Md. 626, 633-34 (1991). The Court favorably quoted the Mississippi Supreme Court’s
statement that such laws
reflect[] recognition that the trial process at best is traumatic to the victim
of sexual abuse. If [victims have] reason to believe the most intimate
details of [their] li[ves] are going to be bandied about the courtroom,
many victims will decide the game is not worth the candle and decline to
file a complaint.
Id. at 634 (quoting Goodson v. State, 566 So. 2d 1142, 1149-50 (Miss. 1990)).
The Report of the Senate Judicial Proceedings Committee on Senate Bill 399
identifies the purpose of the bill as
to preclude admission into evidence of opinion and reputation evidence
as to the chastity of the victim of a sexual offense; and to limit the
admission of evidence concerning specific instances of the victim’s prior
sexual conduct; and thereby lessen the likelihood of exacerbating the
psychological injury already suffered by the victim of a sexual offense.
Report of Md. Senate Judicial Proceedings Committee on Senate Bill No. 399, at 1 (1976)
(“Report of S.B. 399”).8 That statement indicates that the dual elements of the bill—
8
Both chambers of the General Assembly introduced rape shield legislation in the
same session, and both ultimately passed substantially identical bills. See Senate Bill 399
17
excluding opinion and reputation evidence and limiting the admission of specific instances
evidence—were both intended to reduce the trauma of victims of sexual offense during the
trial process. The report cited then-State Senator Steny Hoyer, Chair of the special
committee whose efforts led to the legislation, as identifying that the bill addressed “the
plight of the victim of a rape,” a large number of whom did not report the offenses. Id. at
2. The framers of the law intended that the “[d]iminution of degrading practices subsequent
to the report of a rape would result in a greater willingness of a victim to seek criminal
redress against the attacker.” Id.According to the Senate Report, only the prohibition on use of reputation or opinion
evidence concerning chastity or abstinence and the procedural requirements for use of
specific instances evidence were new. Id. at 2, 3. The Report noted that the exceptions to
the general limitation against use of specific instances evidence “presently exist[ed] in case
law[.]” Id. at 1; see also J. William Pitcher, Legislation: Rape and Other Sexual Offense
Law Reform in Maryland — 1976-1977, 7 U. Balt. L. Rev. 151, 156 (1977) (“The list of
exceptions to the ban on evidence of specific instances of the victim’s prior sexual activities
was, in reality, a codification of the common law, and thus constituted no substantive
change.”). Nonetheless, the committee’s identification of the new law’s benefits appeared
to focus more on the benefits of limiting specific instances evidence. Among other
observations, the committee said that “limiting evidence relating to prior sexual conduct of
(1976) & House Bill 715 (1976). Governor Marvin Mandel signed the House Bill and
vetoed the Senate’s.
18
a rape victim . . . would probably result in an increase in the percentage of rapes reported.”
Report of S.B. 399, at 4. It also found
that a statutory response to the inherent sensitivities of a traumatized
victim could accommodate the constitutionally mandated rights and
protections properly afforded a defendant in our criminal justice system;
and that the weighing of inflammatory nature versus the probative value
of evidence of specific instances of prior sexual conduct precludes
possible admission of highly prejudicial evidence of limited probative
value.
Id.9
The legislative history reflects that the General Assembly intended to protect
victims of sexual offenses from the introduction of humiliating evidence about their past,
except in the rare circumstances when such evidence was necessary to a defendant’s
legitimate defense, for the purposes of: (1) encouraging victims of sex crimes to report
them; (2) avoiding further trauma to victims who do report such crimes; and (3) avoiding
9
Section 3-319 was most recently amended in 2003, when the General Assembly
extended its scope to prosecutions for sexual abuse of a child. See generally 2003 Md.
Laws ch. 89 § 1; see also Lynn McLain, 5 Maryland Evidence § 412:1 (2020). The State
argues that this amendment provides additional support for interpreting “prior sexual
conduct” to include nonconsensual conduct because sexual acts involving children often,
by definition, occur before the legal age of consent. It is true that the age of consent for
sexual activity generally in Maryland is 16, and that it is illegal for someone more than
four years older than a 14- or 15-year-old to engage sexually with that minor. See generally
Crim. Law §§ 3-304(a)(3) (second-degree rape); 3-307(a)(3), (4) & (5) (sexual offense in
the third degree); 3-308(b)(2) & (3) (sexual offense in the fourth degree); 3-315 (continuing
course of conduct with a child). Interpreting the statute not to reach nonconsensual sexual
conduct would thus preclude its use in all child sexual abuse cases involving a victim under
the age of 14 and some cases involving older victims. Because we see no evidence in the
legislative history to suggest an intent to significantly limit the effect of the amendment,
we agree that the amendment provides further support for our conclusion that the General
Assembly intended the Rape Shield Statute to apply to evidence of unwilling sexual
activity. At a minimum, the amendment does not in any way undermine our prior
legislative history analysis.
19
confusing juries and diverting their attention from the defendant’s guilt or innocence with
the introduction of evidence of limited or no probative value, but which is highly
prejudicial or inflammatory.
Each of these purposes is served by interpreting the scope of “prior sexual conduct”
to include unwilling sexual conduct. To be sure, the prospect that reporting a sexual crime
could force a victim to relive on the witness stand the circumstances of a prior sexual crime
would discourage victims from coming forward. And the risk of jury confusion from the
introduction in one sexual offense trial of evidence of a different sex crime by another
perpetrator is great. Moreover, we recognize the argument that some victims of prior abuse
or rape may be uniquely prone to psychological harm by exposing that history in public.
See Pitcher, supra, at 163 (stating that one goal demonstrated by the legislative debate in
enacting the original bill was to “lessen[] the likelihood of exacerbating the psychological
injury already suffered”). We also doubt that the General Assembly might have believed
a victim’s privacy and reputation would be worth protecting when engaging in willful
sexual conduct but not when such conduct was forced upon the victim.10
10
We note that many other jurisdictions have interpreted their own rape shield laws,
which sometimes use different language, to apply to nonconsensual conduct. See, e.g.,
State v. Jeffries, 156 N.E.3d 859, 861 (Ohio 2020), cert. denied, 141 S. Ct. 1085 (2021)
(“We hold that Ohio’s rape-shield law unambiguously applies to both consensual and
nonconsensual sexual activity.”); State v. Jones, 490 N.W.2d 787, 790 (Iowa 1992)
(holding that the term “sexual behavior” includes a victim’s past sexual abuse under Iowa
law), overruled on other grounds by State v. Plain, 898 N.W.2d 801 (Iowa 2017); State v.
Pulizzano, 456 N.W.2d 325, 329 (Wis. 1990) (“The prior sexual assault M.D. experienced
clearly constitutes ‘sexual conduct’ as that term is defined in [the rape shield statute].”);
Commonwealth v. Ruffen, 507 N.E.2d 684, 688 (Mass. 1987) (recognizing that evidence of
victim’s prior sexual abuse would typically be barred by rape shield statute unless
defendant’s constitutional rights necessitate its admission); State v. Jacques, 558 A.2d 706,
20
Our review of legislative history thus adds support to our conclusion that the Rape
Shield Statute’s specific instances provision applies to both willing and unwilling sexual
conduct.
C. Shand I and Shand II
Mr. Westley’s primary argument that the Rape Shield Statute applies only to willing
sexual conduct is premised on this Court’s statement in Shand I “that ‘sexual conduct,’ as
that term is used in Maryland’s Rape Shield Law, requires physical contact indicating a
willingness to engage in either vaginal intercourse or a sexual act.” 103 Md. App. at 480-81
(footnotes omitted). Even if Mr. Westley properly interprets that statement—and, as we
explain below, we are not convinced that he does—the Court of Appeals’ decision in Shand
II rejected the reasoning underlying his interpretation of it. Explaining why requires further
exploration of the decisions.
In Shand I, the defendant in a rape prosecution sought to introduce evidence that
two weeks before the alleged rape, the victim had offered to exchange sex with the
707 n.2 (Me. 1989) (“We reject, as providing insufficient protection to victims, the
defendant’s proposed interpretation of ‘sexual behavior’ to apply only to a victim’s
‘volitional sexual behavior.’”); State v. Muyingo, 15 P.3d 83, 87 (Or. Ct. App. 2000)
(stating that “‘[p]ast sexual behavior’ means a volitional or non-volitional physical act”
and holding that evidence of the prior rape of the complaining witness fell within the
meaning of past sexual behavior under Oregon rape shield statute (quoting State v. Wright,
776 P.2d 1294, 1297-98 (Or. Ct. App. 1989))); see generally Grant v. Demskie, 75 F. Supp.
2d 201, 211-12 (S.D.N.Y. 1999) (“The majority of states view prior rape or sexual abuse
of a child as ‘sexual conduct’ within the ambit of state rape shield laws. . . . On the other
hand, a minority of states hold that prior rape or sexual abuse of a child is not evidence of
unchastity and therefore is not ‘sexual conduct’ within the ambit of state rape shield laws.”)
(collecting cases). But see State v. Markle, 823 P.2d 1101, 1109 (Wash. 1992) (holding
that evidence of victim’s prior sexual abuse was not within rape shield definition of prior
sexual activity).
21
defendant for drugs. Id. at 477. The defendant argued that the evidence was admissible as
“[e]vidence of the victim’s past sexual conduct with the defendant”—one of the four
exceptions to the application of the Rape Shield Statute’s specific instances limitation11—
in support of his contention that the purported rape was consensual. Id. at 474, 477-78.
This Court, citing the Court of Appeals’ decision in White v. State, concluded that to be
admissible as a “specific instance[] of a victim’s prior sexual conduct” with the defendant,
id. at 480 (quoting White, 324 Md. at 636), the evidence had to have “special relevance to
11
At the time relevant in Shand, the Rape Shield Statute was codified in § 461A of
Article 27 of the Maryland Code. For our purposes, the primary difference between § 461A
and the current § 3-319 is organizational. The prior text provided:
(a) Evidence relating to victim’s chastity.—Evidence relating to a
victim’s reputation for chastity and opinion evidence relating to a
victim’s chastity are not admissible in any prosecution for commission of
a rape or sexual offense in the first or second degree. Evidence of specific
instances of the victim’s prior sexual conduct may be admitted only if the
judge finds the evidence is relevant and is material to a fact in issue in the
case and that its inflammatory or prejudicial nature does not outweigh its
probative value, and if the evidence is:
(1) Evidence of the victim’s past sexual conduct with the
defendant; or
(2) Evidence of specific instances of sexual activity showing the
source or origin of semen, pregnancy, disease, or trauma; or
(3) Evidence which supports a claim that the victim has an ulterior
motive in accusing the defendant of the crime; or
(4) Evidence offered for the purpose of impeachment when the
prosecutor puts the victim’s prior sexual conduct in issue.
(b) In camera hearing.—Any evidence described in subsection (a) of this
section, may not be referred to in any statements to a jury nor introduced
at trial without the court holding a prior in camera hearing to determine
the admissibility of the evidence[.]
Shand II, 341 Md. at 664 n.2 (quoting Md. Code Ann., Art. 27 § 461A).
22
the defense of consent,” Shand I, 103 Md. App. at 480. And to have special relevance to
the defense of consent, the Court reasoned that prior sexual conduct had to involve
“physical contact indicating a willingness to engage in either vaginal intercourse or a sexual
act.” Id. at 480-81 (footnotes omitted). Because a verbal offer to exchange sex for drugs
did not involve physical conduct, the Court held, it was not specific instances evidence
subject to that provision and, therefore, it was not admissible under the exception
applicable to “past sexual conduct with the defendant[.]” Id. at 481-82.
The Court proceeded to analyze whether the evidence could nonetheless constitute
reputation or opinion evidence and be excluded on that basis. Although the Court
acknowledged that it had previously held that specific instances evidence was not within
the scope of the statute’s provision addressing reputation or opinion evidence, id. at 482-83
(citing Lucado v. State, 40 Md. App. 25, 39 (1978)), the Court was not satisfied that that
distinction served the legislative purpose of avoiding humiliation of victims of sexual
crimes and encouraging them to come forward, Shand I, 103 Md. App. at 483. To address
that deficiency, the Court crafted an exception to allow the exclusion of “evidence of
specific instances not involving physical contact indicating a willingness to engage in
vaginal intercourse or a sexual act . . . as evidence relating to a victim’s chastity.” Id. In
doing so, the Court effectively enlarged the scope of the prohibition against admission of
reputation or opinion evidence to include the specific instances evidence that it had just
determined fell outside the scope of the specific instances provision itself.
The Court of Appeals agreed on the ultimate outcome—that the circuit court had
been correct to exclude the proffered evidence—but on a different rationale. Before
23
addressing the scope of either subsection of the Rape Shield Statute, the Court determined
that the proffered evidence was irrelevant even under traditional evidentiary principles
because there had been no evidence introduced of an exchange of sex for drugs on the night
of the rape. Shand II, 341 Md. at 673. Absent such a basis, the Court discerned that
evidence that the victim had previously offered or entertained such an exchange was
irrelevant and so was properly excluded. Id.The Court then turned to this Court’s decision, which it found incorrect in two
respects: (1) in “constru[ing] ‘sexual conduct’ in the Statute to require physical contact
indicating a willingness to engage in either vaginal intercourse . . . or a sexual act”; and
(2) in “constru[ing] the Statute’s prohibition against reputation and opinion evidence as to
chastity to include specific acts.” Id. at 674-75. The Court provided no further discussion
or analysis with respect to the second error, but it seems apparent that the Court viewed the
two provisions of the Rape Shield Statute as distinct, with one addressing reputation and
opinion evidence and the other covering specific instances evidence.
With respect to the first error, looking to dictionary definitions of “conduct,”12 the
Court concluded that “[t]he act of making an offer to another person is certainly conduct”
12
The dictionary definitions the Court considered are similar to those we cited
above:
The word “conduct” is defined as “behavior in a particular situation or
relation or on a specified occasion.” Webster’s Third New International
Dictionary 474 (1976). “Conduct” is: “[p]ersonal behavior; deportment;
mode of action; any positive or negative act.” Black’s Law Dictionary
268 (5th ed. 1979).
Shand II, 341 Md. at 675 (alteration in original).
24
and that an offer to engage in sexual activity can constitute sexual conduct. Id. at 675. The
Court also viewed as significant the General Assembly’s choice of the word “conduct,”
rather than other phrases used elsewhere in the statute that had “strong[er] physical
connotations.” Id. at 675-76. After citing several cases from other jurisdictions reaching
the same conclusion, the Court held that “sexual conduct” need not be physical and that an
offer to exchange sex for drugs was “sexual conduct” subject to analysis under the Rape
Shield Statute. Id. at 677-80.
Mr. Westley contends that because the Court of Appeals in Shand II did not
expressly disavow this Court’s statement that evidence of “sexual conduct” necessarily
must indicate a “willingness to engage in vaginal intercourse or a sexual act,” Shand I, 103
Md. App. at 483, this Court remains bound by that interpretation of the statute. We
disagree. In identifying this Court’s two errors in interpreting the Rape Shield Statute, the
Court of Appeals described the first as “constru[ing] ‘sexual conduct’ in the Statute to
require physical contact indicating a willingness to engage in either vaginal intercourse
. . . or a sexual act[.]” Shand II, 341 Md. at 674-75. Although the Court’s subsequent
discussion focused on the “physical contact” aspect of that construction—which was the
only aspect that was relevant there—the disagreement applied to the entire construction.
That construction thus did not survive Shand II.
Furthermore, even if Shand II had not resolved the issue, it is not clear to us that
Mr. Westley’s interpretation of the construction in Shand I would have been correct.
Notably, this Court’s statement in Shand I was made in the context of analyzing whether
the evidence of an offer to trade sex for drugs fell within the statute’s exception for specific
25
instances of sexual conduct evidence pertaining to “the victim’s past sexual conduct with
the defendant[.]” 103 Md. App. at 474, 478. It was in that context that this Court
understandably construed “sexual conduct” as needing to have “special relevance to the
defense of consent.” Id. at 480. We have no qualms with that conclusion as it pertains to
the exception for consent. As explained above, however, we see no reason to read any
such limitation into the phrase “prior sexual conduct” outside the context of that exception,
and we find it notable that the statute’s three other exceptions have no necessary link to
consent. Shand I thus does not require us to interpret “prior sexual conduct” as limited
only to conduct in which the victim has willingly engaged.
In sum, we hold that based on the plain language, purpose, and context of the Rape
Shield Statute, “prior sexual conduct” within the scope of subsection (b) includes all sexual
conduct, whether willing or not.
II. THE RAPE SHIELD STATUTE PRECLUDED EVIDENCE OF VICTIM’S PRIOR
ABUSE AND EXCLUSION OF THAT EVIDENCE DID NOT VIOLATE
MR. WESTLEY’S CONSTITUTIONAL RIGHTS.
Turning back to our case, because evidence of Victim’s prior assault by Mr. Quails
was evidence of “a specific instance of a victim’s prior sexual conduct,” and Mr. Westley
sought to admit it in his prosecution for sexual abuse of a minor, the evidence should have
been analyzed under the framework of the Rape Shield Statute. To be admissible under
the statute, prior evidence of sexual conduct must meet each of four criteria. It must: (1) be
relevant; (2) be material; (3) have probative value that is not outweighed by its
inflammatory or prejudicial nature; and (4) fit within one of four identified exceptions. See
26
Crim. Law § 3-319(b). We conclude that the proffered evidence meets none of those
requirements and that preclusion does not violate Mr. Westley’s constitutional rights.
A. The Rape Shield Statute Precluded Evidence of Victim’s Prior
Abuse.
We will address the somewhat more involved issues of relevance and prejudice
further below, but it is sufficient to resolve the statutory question to note that the evidence
of Victim’s prior assault by Mr. Quails is not admissible under the Rape Shield Statute
because it does not fit within any of the four exceptions that would permit its introduction
as Victim’s “prior sexual conduct.” The prior abuse evidence (i) did not involve sexual
conduct with Mr. Westley; (ii) did not reveal the source or origin of semen, pregnancy,
disease, or trauma; (iii) was not alleged to support a claim of an ulterior motive to accuse
Mr. Westley; and (iv) was not offered for impeachment after the prosecutor put Victim’s
prior sexual conduct in issue. See Crim. Law § 3-319(b)(4). Lacking an applicable
exception, the evidence of Victim’s prior sexual conduct was inadmissible under the Rape
Shield Statute.
That conclusion, however, does not end our inquiry, because Mr. Westley contends
that excluding the evidence violated his constitutional rights to due process and to confront
his accuser. If he is correct, then the Rape Shield Statute could not stand in the way of him
introducing the evidence in his own defense. We turn now to that contention.
B. Mr. Westley Did Not Have a Constitutional Right to Introduce
Evidence of Victim’s Prior Sexual Assault.
Mr. Westley contends that he had a constitutional right to present evidence of
Victim’s prior sexual assault because that evidence was necessary to rebut a presumption
27
of sexual innocence that the jury would naturally hold; that is, a presumption by the jury
that Victim, at 12 years old, “was too sexually innocent to fabricate the charges, which in
turn would have made it possible, and therefore more likely, that she fabricated them.” As
discussed further below, we hold that before admitting such evidence, a court must assess
on a case-by-case basis whether the exclusion of such evidence would violate the
defendant’s constitutional rights. The first step in that analysis requires an assessment of
whether the facts of the case actually give rise to a presumption of sexual innocence. If so,
the court must then determine whether the evidence proffered actually rebuts the
presumption. Finally, the court must assess whether the prejudicial or inflammatory nature
of the evidence outweighs its probative value. Here, because we conclude that the facts
did not give rise to a presumption of sexual innocence, we conclude that the evidence was
not relevant and the trial court correctly precluded it.
The four circumstances in which specific instances of a victim’s prior sexual
conduct may be admitted under § 3-319(b), in combination with the statute’s balancing
test, are intended to accommodate a defendant’s constitutional rights while protecting the
victim. See Johnson v. State, 332 Md. 456, 465 (1993) (describing legislative intent in
passing the Rape Shield Statute). However, when a limitation on the admissibility of
evidence under the Rape Shield Statute conflicts with a defendant’s constitutional rights,
the law’s restrictions must give way. See Thomas v. State, 301 Md. 294, 318 (1984)
(“[R]ape shield laws may not be used to exclude probative evidence in violation of a
defendant’s constitutional rights of confrontation and due process.”).
28
By potentially limiting a defendant’s case, rape shield statutes can collide with a
defendant’s right to confront one’s accuser and the right to due process. The right to due
process derives in part from a criminal defendant’s implicit constitutional right to testify in
his or her own defense. United States v. Dunnigan, 507 U.S. 87, 96 (1993); Dallas v. State,
413 Md. 569, 588-90 (2010) (Bell, C.J., concurring in part) (recognizing the same right
applies in Maryland courts). For purposes of state criminal proceedings, the right to testify
arises out of the Fourteenth Amendment’s Due Process Clause. “[I]n plain terms[,] the
right to present a defense [is] the right to present the defendant’s version of the facts as
well as the prosecution’s to the jury so it may decide where the truth lies.” Washington v.
Texas, 388 U.S. 14, 19 (1967); see also Allen v. State, 440 Md. 643, 677 (2014) (“The right
of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity
to defend against the State’s accusations.” (quoting Foster v. State, 297 Md. 191, 203
(1983))). The Sixth Amendment to the United States Constitution and Article 21 of the
Maryland Declaration of Rights provide a criminal defendant the right to confront one’s
accuser and any witness testifying against that defendant. See Michigan v. Lucas, 500 U.S.
145, 149 (1991); Derr v. State, 434 Md. 88, 103 (2013). That right, like the Fifth and
Fourteenth Amendment due process right, also provides that a defendant may “have
compulsory process for obtaining witnesses in his [or her] favor[.]” Kelly v. State, 392 Md.
511, 532 (2006) (quoting Washington, 388 U.S. at 15). Compulsory process allows a
defendant to call witnesses to testify at trial and, if necessary, to use the subpoena power
to compel testimony. Together, the rights to compulsory process, confrontation, and due
process give the defendant a constitutional right to present relevant evidence.
29
Notably, however, the rights are not absolute. A defendant’s
right to present a defense, albeit fundamental, is nonetheless subject “to
two paramount rules of evidence, embodied both in case law and
in Maryland Rules 5-402 and 5-403. The first is that evidence that is not
relevant to a material issue is inadmissible. The second is that, even if
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.”
Holmes v. State, 236 Md. App. 636, 668 (2018) (emphasis omitted) (quoting Taneja v.
State, 231 Md. App. 1, 11 (2016)). In applying these concepts to uphold a notice provision
in a rape shield statute that resulted in the exclusion of evidence of the defendant’s own
past sexual conduct with the victim, the United States Supreme Court has observed that
“‘trial judges retain wide latitude’ to limit reasonably a criminal defendant’s right to
cross-examine a witness ‘based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or
only marginally relevant.’” Lucas, 500 U.S. at 149 (quoting Delaware v. Van Arsdall, 475
U.S. 673, 679 (1986)); White, 324 Md. at 640 (quoting Lucas with approval); see also Utter
v. State, 139 Md. App. 43, 53 (2001) (concluding that defendant charged with attempted
rape did not have constitutional right to introduce evidence of victim’s propensity to offer
sexual favors for cigarettes).
Rule 5-401 defines “relevant evidence” as that having “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.” Irrelevant evidence is
inadmissible. Md. Rule 5-402; see e.g., Simmons v. State, 392 Md. 279, 300 (2006).
Where evidence is relevant, a court may still exclude it, in accord with Rule 5-403, “if its
30
probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” Newman v. State, 236 Md. App. 533, 548
(2018) (emphasis omitted) (quoting Md. Rule 5-403).
The theory that Mr. Westley relies on to establish the relevance of evidence of
Victim’s prior sexual assault is sometimes referred to as the “sexual innocence inference”
theory. See Clifford S. Fishman & Jeannine Rustad, Child abuse cases: Admissibility on
source of knowledge, in 3 Clifford S. Fishman & Anne T. McKenna, Jones on Evidence
§ 19:60 (7th ed. 2020).
The theory is based on the premise that because most children of tender
years are ignorant of matters relating to sexual conduct, a child
complainant’s ability to describe such conduct may persuade the jury that
the charged conduct in fact occurred. To demonstrate that the child had
acquired sufficient knowledge to fabricate a charge against the defendant,
the theory reasons, the court should allow the defense to offer evidence
that the child acquired sexual experience with someone else before he or
she accused the defendant.
Clifford S. Fishman, Consent, Credibility, and the Constitution: Evidence Relating to a
Sex Offense Complainant’s Past Sexual Behavior, 44 Cath. U. L. Rev. 709, 806 (1995).
The argument that a child has alternative sources of knowledge is not always attached to
an argument that the victim is fabricating charges, but it often is. See, e.g., State v. Oliver,
760 P.2d 1071, 1074 (Ariz. 1988); State v. Howard, 426 A.2d 457, 462 (N.H. 1981); State
v. Clarke, 343 N.W.2d 158, 162 (Iowa 1984).
No Maryland appellate court has previously addressed whether a defendant has a
constitutional right to introduce evidence to rebut a child’s presumed sexual innocence.
31
Other states’ courts have split on the admissibility of such evidence, whether deciding on
constitutional grounds, as an unenumerated specific instances exception under a rape shield
statute, or based on the application of traditional rules of evidence. A minority of courts
have ruled such evidence to be broadly admissible. In State v. Howard, for example, after
upholding the constitutionality of the state’s rape shield statute, 426 A.2d at 460-61, the
New Hampshire Supreme Court determined that the defendant had a constitutional right to
explore the 12-year-old victim’s prior sexual experience based on the court’s “belie[f] that
the average juror would perceive the average twelve-year-old girl as a sexual innocent”
and, therefore, would presume that the girl could not have described the incident at issue
unless it had actually occurred, id. at 462. Notably, the court did not provide any support
for its belief, nor did it provide any description of the victim’s allegations against the
defendant, other than to note that the charge was of statutory rape.13 Id. at 458-49.
Similarly, in State v. Jacques, which involved five- and ten-year-old victims, the
Maine Supreme Court observed that “[w]here the victim is a child . . . the lack of sexual
experience is automatically in the case without specific action by the prosecutor. A
defendant therefore must be permitted to rebut the inference a jury might otherwise draw
that the victim was so naive sexually that she could not have fabricated the charge.” 558
A.2d 706, 708 (Me. 1989); see also State v. Carver, 678 P.2d 842, 843-44 (Wash. Ct. App.
1984) (holding that defendant should have been permitted to introduce evidence of prior
13
Although the court did not identify the victim’s allegations concerning the
defendant in that case, it did quote in detail the allegations concerning her prior sexual
conduct that the defendant wanted to introduce, which included allegations of bestiality,
incest, and prostitution. Howard, 426 A.2d at 458-59.
32
abuse of victims described as “little girls” “to rebut the inference that the only way two
young girls would have knowledge of such sexual matters was because the defendant had
sexually abused them as charged”); Summitt v. State, 697 P.2d 1374, 1375 (Nev. 1985)
(holding that trial court erred in excluding evidence of the six-year-old victim’s prior sexual
experience offered “to show that the young victim had had prior independent knowledge
of similar acts which constituted the basis for the present charge”).
Other courts have generally rejected the admissibility of such evidence and, in doing
so, have questioned the validity of the theory underlying it. For example, in State v. Clarke,
the Iowa Supreme Court held that evidence that a “relatively young” complainant had
previously engaged in oral sex was properly excluded. 343 N.W.2d at 162-63. The court
held that the evidence was “at most, of very marginal probative value,” and that “[i]t
certainly does not constitute evidence whose probative value outweighs the substantial
danger of unfair prejudice, confusion of issues, misleading of the jury, and invasion of
complainant’s privacy which . . . rape shield laws are designed to prevent.” Id. at 163.
Similarly, in People v. Arenda, the Michigan Supreme Court held that evidence of a child
victim’s prior sexual conduct with others was properly excluded because “[a] jury is
unlikely to consider a witness’s ability to describe sexual conduct as an independent factor
supporting a conviction.” 330 N.W.2d 814, 817-18 (Mich. 1982). The court observed that
unlike the categories of evidence made admissible under rape shield statutes, a victim’s
source of knowledge “need not be acquired solely through sexual conduct,” and could be
explored through less prejudicial types of evidence. Id. at 818. Moreover, the court
observed that the sexual innocence theory would likely be relevant only to very young
33
children, and that such children “are among the persons whom the [rape shield] statute was
designed to protect.” Id.In contrast to these seemingly all-or-nothing approaches, most states have not
categorically approved or disapproved the admission of evidence of prior sexual conduct
under a sexual innocence theory but have held that such evidence must be considered on a
case-by-case basis. For example, in State v. Molen, the Idaho Court of Appeals held that
the trial court had properly excluded evidence of the eight-year-old victim’s prior exposure
to sexual conduct, which was offered to explain how she “would know so much about sex
unless she had actually been molested.” 231 P.3d 1047, 1050-51 (Idaho Ct. App. 2010).
The Idaho court joined what it called “the vast majority of courts [that] have held that
evidence of a child victim’s prior exposure to sexual conduct may be relevant to show an
alternative basis for the child’s sexual knowledge,” id. at 1052, and identified three factors
to consider on a case-by-case basis in making that assessment: (1) “the age of the child,”
with “the probative value” of such evidence “ordinarily . . . inversely proportional to the
child’s age”; (2) “the degree of similarity between the acts of which the defendant is
accused and the prior sexual activity to which the child was exposed”; and (3) “the interest
of avoiding trauma to the child from subjection to cross-examination concerning a prior
molestation,” id. at 1052-53.14 Notwithstanding the child’s age and the prosecutor’s
introduction of testimony from her “mother from which the jury could have inferred that
14
This third factor was identified but not at issue in Molen because the evidence the
defendant sought to admit in that case was of the child’s prior exposure to the sexual
conduct of others, not sexual conduct involving the child victim. 231 P.3d at 1053.
34
the child was sexually uninformed,” the court in Molen concluded that the evidence of prior
exposure was not sufficiently similar to the allegations against the defendant to make the
evidence relevant. Id. at 1053.
In State v. Pulizzano, the Wisconsin Supreme Court held that to establish a
constitutional right to present “evidence of a child complainant’s prior sexual conduct for
the limited purpose of proving an alternative source for sexual knowledge,” a defendant
would be required to
make an offer of proof showing: (1) that the prior acts clearly occurred;
(2) that the acts closely resembled those of the present case; (3) that the
prior act is clearly relevant to a material issue; (4) that the evidence is
necessary to the defendant’s case; and (5) that the probative value of the
evidence outweighs its prejudicial effect.
456 N.W.2d 325, 335 (Wis. 1990). Applying those factors in that case, the court concluded
that the trial court had improperly excluded evidence that the seven-year-old complainant
had previously been sexually assaulted where the prior assault “involved acts similar to
those alleged here”; “[t]he inference that [the victim] could not possess the sexual
knowledge he does unless [the defendant] sexually assaulted the children greatly bolsters
[the victim]’s allegations”; and the inference could only be rebutted by “establish[ing] an
alternative source for [the victim]’s sexual knowledge.” Id. at 329, 334-35.
And in Commonwealth v. Appenzeller, a Pennsylvania intermediate appellate court
held that the trial court properly precluded a defendant from introducing testimony of prior
sexual abuse of a three-year-old victim where no foundation was laid “that her knowledge
of sexual techniques and nomenclature was derived from the contact with appellant and his
co-conspirator.” 565 A.2d 170, 171 (Pa. Super. Ct. 1989); see also Oliver, 760 P.2d at
35
1077 (creating two-prong test in which defendant must first prove that the victim had
previously been exposed to a sexual act and then show that the prior sexual act was
sufficiently similar to serve as a basis for present knowledge); Commonwealth v. Ruffen,
507 N.E.2d 684, 687-88 (Mass. 1987) (requiring defendant to prove relevance of prior sex
crime before court may admit such evidence); State v. Benedict, 397 N.W.2d 337, 341
(Minn. 1986) (requiring trial courts to assess relevance and balance the probative value
against unfair prejudice before admitting prior sex crimes evidence); Woodruff v. State,
518 So. 2d 669, 673 (Miss. 1988) (requiring relevancy determination from trial judge);
State v. Moton, 749 P.2d 639, 644 (Utah 1988) (affirming exclusion of evidence where it
was unnecessary because the victim “had already admitted to having a great deal of sexual
knowledge”).
We join the majority of state courts that have considered this issue in determining
that when a defendant seeks to admit evidence of a victim’s prior sexual conduct to dispel
a presumption of sexual innocence, a court must assess on a case-by-case basis whether
the exclusion of such evidence would violate the defendant’s constitutional rights. In
making that assessment, a court must first determine if the facts of the case actually give
rise to a presumption of sexual innocence. In doing so, a court should consider, among
other relevant factors, the age of the child, the maturity of the sexual behavior alleged,
whether the child’s allegations necessarily suggest sexual knowledge beyond what a child
of that age would presumedly possess, whether the State has introduced evidence
suggestive of sexual innocence, and whether there is other evidence that the victim
possessed sexual knowledge before reporting the conduct at issue. A court should not
36
presume sexual innocence merely because the complainant is a minor. If the minor’s
allegations do not suggest sexual knowledge that is necessarily beyond the child’s age and
the State has not introduced evidence suggesting sexual innocence, then evidence
introduced to counter such a presumption is irrelevant and must be excluded.
If a court determines that the facts of the case would give rise to a presumption of
sexual innocence, the court must then determine whether the proffered evidence actually
rebuts the presumption. Doing so requires a comparison between the allegations of the
prior sexual activity and those involved in the case at hand. If the comparison does not
reflect sufficient similarity such that the prior conduct would dispel a presumption of sexual
innocence, then the evidence of the prior conduct would not rebut the presumption and
should be excluded as irrelevant.
Finally, the court must assess whether “the inflammatory or prejudicial nature of the
evidence . . . outweigh[s] its probative value[.]” Crim. Law § 3-319(b)(3). In making that
determination, a court should consider, among other relevant factors, the proximity in time
between the prior sexual conduct and the complainant’s allegations; whether the
presumption can be rebutted in other, less prejudicial ways; if not, whether the evidence of
prior sexual conduct can be presented through means other than cross-examination of the
complainant; and, if not, whether reasonable limits on cross-examination can be imposed
to protect the complainant while protecting the defendant’s constitutional rights. See Hall
v. State, 233 Md. App. 118, 133 (2017) (“The defendant’s right to cross-examine is not
limitless, and ‘[a] trial court may impose reasonable limits on cross-examination when
necessary for witness safety or to prevent harassment, prejudice, confusion of the issues,
37
and inquiry that is repetitive or only marginally relevant.’” (alteration in original) (quoting
Martinez v. State, 416 Md. 418, 428 (2010))).
Returning to Mr. Westley’s case, we have no difficulty in concluding that the circuit
court did not err in determining that the evidence of prior abuse was irrelevant because the
facts of this case did not give rise to a presumption of sexual innocence. Victim was 12
years old at the time of the abuse by Mr. Westley and her allegations were of basic sexual
conduct, including that Mr. Westley touched her private parts with his hands, mouth, and
penis, and that white “stuff” came out of his penis. Mr. Westley did not present any basis
of support for his claim that an ordinary juror would presume that a 12-year-old child would
lack sufficient sexual knowledge to describe such actions, nor did the State introduce any
evidence to suggest that this particular 12-year-old would lack such knowledge.
Although there may be an age at which such a presumption could arise without
additional proof, we find no fault in the motions court’s assessment that a jury would be
aware that there are other sources from which a 12-year-old could have obtained such
rudimentary sexual knowledge. Children are routinely taught that touching private body
parts is inappropriate and should be reported, school-based sexual education programs
provide relevant information,15 and many 12-year-old children have access to ubiquitous
mass and social media containing sexual content.16 See Commonwealth v. Rathburn, 532
15
Maryland regulations require each county’s public schools to offer an elective
education program addressing, among other topics, “family life and human sexuality.”
COMAR 13A.04.18.01.D.
16
In ruling on the motion in limine, the circuit court colorfully expressed this reality
in remarking that Victim’s sexual knowledge just as plausibly came “from Instagram, like
all the other 12-year-olds out there in the world at this point.”
38
N.E.2d 691, 695-97 (Mass. App. Ct. 1988) (affirming preclusion of evidence of prior
sexual abuse of child who was 10 and 11 years old at the time of the offenses and 13 years
old at the time of trial, in part because her testimony “did not demonstrate ‘extraordinary
knowledge’ of sexual acts or sexual matters in general”); Christopher B. Reid, Note, The
Sexual Innocence Inference Theory as a Basis for the Admissibility of a Child Molestation
Victim’s Prior Sexual Conduct, 91 Mich. L. Rev. 827, 852 n.138 (1993) (citing studies
suggesting that most children begin to mature physically at about age twelve). And
although the motions court properly made its decision preliminary, subject to reopening at
trial if the State presented evidence suggestive of sexual innocence, no such evidence was
introduced.17 As a result, the motions court’s exclusion of the evidence was not erroneous.
17
Mr. Westley does not point to any evidence the State introduced that was
suggestive of Victim’s sexual innocence, but he does argue that the State made such an
argument in closing. Specifically, Mr. Westley highlights the prosecutor’s statement that
it was “powerful” and “telling” that Victim was able to specify details, such as the
appearance of Mr. Westley’s penis and ejaculate, “on her own at the age of 12,” given that
“a lot of children” would not be able to do so. For several reasons, that argument is
unavailing. First, to the extent Mr. Westley now argues that the prosecutor’s statement was
improper, he failed to object at trial or raise the issue in his motion for a new trial and so
has not preserved any such claim for appeal. See Md. Rule 4-323(a). Second, to the extent
Mr. Westley argues that the prosecutor’s statement in closing somehow retroactively
validated his argument for admission of evidence of prior sexual conduct, that is not the
way the rules of evidence operate. If the prosecutor were making an incorrect argument
based on the evidence presented at trial or referring to evidence not in the record, the proper
remedy would have been to object; ask that the comments be struck or a curative instruction
be given; or, if too egregious to be cured, seek a mistrial. But such a comment in closing
does not reverse time and alter the correctness of an earlier evidentiary ruling. Third, in
context, it appears that the prosecutor was not invoking a sexual innocence argument but
instead was commenting on Victim’s credibility based on her forthright statements without
needing to be “le[d] . . . through the interview” with Ms. Fleming. That, perhaps, explains
the absence of a contemporaneous objection. And fourth, evidence concerning Victim’s
allegations about her prior sexual abuse by Mr. Quails would not, in any event, have been
39
Even if we concluded that Mr. Westley had identified a presumption of sexual
innocence, and assuming for purposes of analysis that the allegations of the two incidents
were sufficiently similar so as to offer some probative value, we would hold that the
motions court did not abuse its discretion in concluding that any probative value was
outweighed by the inflammatory and prejudicial nature of the evidence. We have already
explored the significant prejudice attendant to introducing evidence of a victim’s past
sexual abuse, as well as the public policy interest in protecting victims from such trauma,
which is reflected in the Rape Shield Statute. See White, 324 Md. at 634 (identifying
testimony of past sexual conduct as “inva[sive of] the victim’s privacy” and “traumatic to
the victim of sexual abuse” (quoting Goodson v. State, 566 So. 2d 1142, 1150 (Miss.
1990)). An additional risk of unfair prejudice is that the jury might have unreasonably
concluded that Victim was inherently less credible because she had made multiple
allegations of sexual abuse.18 See generally Reid, supra, at 856-59 (discussing the
prejudicial effect of such evidence on the jury’s assessment of a child victim’s credibility).
relevant to rebut her testimony about white “stuff” coming out of Mr. Westley’s penis, as
the proffer concerning her allegations about the prior abuse did not contain that element.
18
To the contrary, studies have concluded that victims of child sexual abuse are
more likely to be victims of subsequent sexual abuse than those who have not previously
been victims. See, e.g., Samantha L. Pittenger et al., Predicting Sexual Revictimization in
Childhood and Adolescence: A Longitudinal Examination Using Ecological Systems
Theory, 23 Child Maltreatment 137, 137 (2018) (stating that child sexual abuse “victims
are at an increased risk for subsequent sexual victimization throughout the life span,”
including “within childhood or adolescence”); Natalia D. Tapia, Survivors of Child Sexual
Abuse and Predictors of Adult Re-victimization in the United States: A Forward Logistic
Regression Analysis, 9 Int’l J. Clinical Just. Scis. 64, 65 (2014) (available online at
http://www.sascv.org/ijcjs/pdfs/Tapiaijcjs2014vol9issue1.pdf) (noting a study concluding
that sexual assault survivors “stand a 35 times greater chance of sexual assault than non-
victims”).
40
That heightens the already significant risk of jury confusion inherent from injecting into a
sexual abuse trial unrelated allegations of sexual abuse of the same victim by a different
perpetrator. See White, 324 Md. at 634 (noting that one purpose of rape shield statutes is
to preclude testimony that would unreasonably “deflect[] the jury’s attention from the true
issue” (quoting Goodson, 566 So.2d at 1150)).
For all these reasons, we hold that the trial court did not err, abuse its discretion, or
violate Mr. Westley’s constitutional rights by excluding evidence of Victim’s prior sexual
abuse.19
III. THE STATE DID NOT OPEN THE DOOR AT TRIAL TO PRIOR ABUSE
EVIDENCE.
Mr. Westley argues that even if the motions court did not err in excluding evidence
of Victim’s prior abuse before trial, the trial court twice erred in continuing to exclude it.
First, Mr. Westley contends that the State opened the door to evidence of Victim’s prior
sexual abuse when Victim testified that she had previously met Ms. Fleming at the CAC
and the State asked, but then promptly withdrew, a question about when they had
previously met.
The opening the door doctrine “offers relief when ‘one party introduces evidence
that was previously irrelevant, over objection, and in doing so, makes relevant an issue in
the case,’ permitting the trial court to determine that the first party ‘opened the door’ for
the second party to offer evidence in response[.]” In re J.H., 245 Md. App. 605, 640 (2020)
19
Based on our foregoing analysis of relevance and prejudice, our ultimate decision
would be the same even if we had concluded that the Rape Shield Statute did not apply.
41
(quoting State v. Heath, 464 Md. 445, 467 (2019)). Notably, however, the responsive
evidence must have been rendered relevant by the evidence that purportedly opened the
door. “The doctrine does not allow, for example, ‘injecting collateral issues into a case or
introducing extrinsic evidence on collateral issues.’” Heath, 464 Md. at 459 (quoting Clark
v. State, 332 Md. 77, 87 (1993)). Moreover, a court may still exclude “‘inadmissible
responsive evidence’ . . . when its[] evidentiary value is surpassed by its ‘danger of unfair
prejudice, [tendency to confuse] the issues, or mislead[] the jury, or by consideration of
undue delay, waste of time, or needless presentation of cumulative evidence.’” In re J.H.,
245 Md. App. at 641 (second alteration in original) (quoting Clark, 332 Md. at 87); see
also Md. Rule 5-403. We review without deference whether an action taken at trial has
triggered the opening the door doctrine. Heath, 464 Md. at 457-58. If the State did open
the door, we review the court’s decision as to the responsive evidence’s admissibility for
an abuse of discretion. Id. at 458.
The relevant episode occurred during the State’s direct examination of Victim.
After Victim testified that Mother took her to see Ms. Fleming at the CAC following the
alleged incident with Mr. Westley, the prosecutor asked whether that was the first time she
had met Ms. Fleming. Victim responded that it was not. The prosecutor then asked when
they had met previously but promptly struck the question.20
20
In his appellate brief, Mr. Westley claims that Victim had answered the
prosecutor’s second question before it was struck. The transcript does not reflect an
answer, and, in any event, Mr. Westley does not identify what answer was purportedly
given. Without basis to doubt the integrity of the transcript, we must assume it is accurate.
42
Mr. Westley did not object to either question or to Victim’s response to the first one.
During cross-examination, however, he argued that the questions had opened the door for
him to inquire as to the reason for Victim’s prior meetings with Ms. Fleming. The court
ruled that the reference was too fleeting and inconsequential to permit a full inquiry into
the previous event. Mr. Westley now contends that Victim’s remarks opened the door
because, without further inquiry, the jury was permitted to speculate that the prior meeting
might have concerned additional wrongdoing by Mr. Westley, particularly as the jury had
already heard that CAC’s services involved “treating and prosecuting victims of child
abuse, sex abuse, and neglect.”
As an initial matter, we observe that Mr. Westley’s argument is not that Victim’s
testimony opened the door to evidence of the prior assault by suggesting a need to rebut a
suggestion of sexual innocence. Instead, his argument is premised on the fundamentally
different notion that the jury may have presumed that Victim had previously been sexually
assaulted by Mr. Westley. With that in mind, we agree with the trial court that the State’s
testimony did not open the door. The transcript supports the trial court’s conclusion that
Victim’s acknowledgment that she had met Ms. Fleming previously was fleeting and
unlikely to have caught the jury’s attention. The response also did not implicate
Mr. Westley in any way. As a result, nothing beyond sheer speculation supports his
contention that the jury might have concluded from it that Victim had previously made
allegations of sexual abuse by Mr. Westley. That is especially so because jurors had
already heard testimony that the CAC provided many types of child protective services, as
well as therapeutic aid and medical care, and that Ms. Fleming spent only about a quarter
43
of her time on child sexual abuse. In short, Victim’s testimony that she had met
Ms. Fleming previously did not make relevant testimony about the reason for those
previous meetings.
The second incident Mr. Westley argues justified admission of evidence of Victim’s
prior assault is premised on the doctrine of verbal completeness. Mr. Westley contends
that when the court admitted a redacted video and transcript of a CAC interview, which
contained unexplained references to Victim previously meeting with Ms. Fleming, he
should have been permitted to admit unredacted versions of those exhibits under the
doctrine of verbal completeness.
In certain circumstances, the doctrine of verbal completeness allows a party to
respond to an opponent’s entry of a writing or conversation “by admitting the remainder of
that writing or conversation.” Conyers v. State, 345 Md. 525, 541 (1997). Three
requirements apply to any evidence admitted as an additional part of a document under that
the doctrine: “[1] No utterance irrelevant to the issue is receivable; [2] No more of the
remainder of the utterance than concerns the same subject, and is explanatory of the first
part, is receivable; [and 3] The remainder . . . merely aids in the construction of the
utterance as a whole[.]” Id. at 541-42 (quoting Feigley v. Baltimore Transit Co., 211 Md.
1, 10 (1956)). “Determining whether separate statements are admissible under the doctrine
of verbal completeness is . . . to be reviewed for an abuse of discretion.” Otto v. State, 459
Md. 423, 446 (2018). “Of course, parts of the conversation having no reference whatever
to the issue upon trial are not admissible under the rule[.]” Grove v. State, 185 Md. 476,
479 (1946) (quoting People v. Bowen, 135 N.W. 824, 827 (Mich. 1912)).
44
The ostensibly incomplete statements in the redacted video and transcript on which
Mr. Westley relies consist of generic references by Ms. Fleming: (1) indicating prior
familiarity with Victim, including stating that Victim looked “taller since the last time,”
asking, “How old are you now?,” and remarking that Victim was “living in Salisbury” the
last time they had talked; and (2) suggesting Victim’s prior familiarity with the facility,
including asking if Victim “remember[ed] the room has cameras” and stating that the CAC
“got new pretty markers.” Notably, Mr. Westley did not object to including any of these
references in the redacted versions of the video and the transcript, nor did he ask for those
references to be redacted. Instead, he argued that their inclusion opened the door for him
to introduce the unredacted video and transcript, including the discussion of Victim’s prior
abuse by Mr. Quails. The court denied Mr. Westley’s motion to admit unredacted exhibits
and later sustained the State’s objection when Mr. Westley attempted to cross-examine
Ms. Fleming about those prior meetings. Mr. Westley argues that the court erred in both
rulings.
We discern no abuse of discretion in the trial court’s determination that the doctrine
of verbal completeness did not require admission of unredacted versions of the video and
transcript. Ms. Fleming’s general references to prior familiarity with Victim did not
suggest abuse by Mr. Westley, and the introduction of evidence of prior abuse by
Mr. Quails was therefore unnecessary to explain them. Furthermore, otherwise
inadmissible evidence may be allowed pursuant to the doctrine of completeness only “if it
is particularly helpful in explaining a partial statement and that explanatory value is not
substantially outweighed by the danger of unfair prejudice, waste of time, or confusion.”
45
Otto, 459 Md. at 452 (emphasis added). As we have already explained, the danger of unfair
prejudice and confusion from introduction of the prior abuse evidence was significant.
For these reasons, we conclude that the trial court did not err or abuse its discretion
in declining to admit evidence of Victim’s prior sexual abuse at trial under the opening the
door doctrine or the doctrine of verbal completeness.
IV. THE EVIDENCE WAS SUFFICIENT FOR A TRIER OF FACT TO CONCLUDE
THAT MR. WESTLEY HAD TEMPORARY RESPONSIBILITY FOR
SUPERVISION OF VICTIM.
Mr. Westley’s final contention is that the evidence was insufficient to convict him
of sexual abuse of a minor based on the modality requiring that he “ha[d] . . . temporary
care or custody or responsibility for the supervision of a minor[.]” See Crim. Law
§ 3-602(b)(1). For purposes of that offense,
responsibility for supervision of a minor child may be obtained only upon
the mutual consent, expressed or implied, by the one legally charged with
the care . . . . [A] parent may not impose responsibility for the supervision
of his or her minor child on a third person unless that person accepts the
responsibility[.]
Ellis v. State, 185 Md. App. 522, 543-44 (2009) (quoting Pope v. State, 284 Md. 309,
323-24 (1979)).
The determination of “whether a person has responsibility for the supervision of a
minor is a question of fact for the jury to determine.” Harrison v. State, 198 Md. App. 236,
243 (2011). On appeal, this Court “review[s] the evidence in the light most favorable to
the prosecution and determine[s] whether ‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” Perry v. State, 229 Md. App.
687, 696 (2016) (quoting State v. Smith, 374 Md. 527, 533 (2003)). The standard of review
46
for legal sufficiency of evidence is not demanding. See McKenzie v. State, 407 Md. 120,
136 (2008) (asking whether “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt” (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979))). We “must give deference to all reasonable inferences the fact-finder
draws, regardless of whether we would have chosen a different reasonable inference.”
State v. Suddith, 379 Md. 425, 430 (2004).
Mr. Westley contends that the evidence at trial was insufficient to demonstrate
beyond a reasonable doubt that he consented to supervise Victim either expressly or
impliedly. We disagree. The record, viewed in the light most favorable to the State,
establishes that Mr. and Ms. Westley took Victim and her four siblings into their care for
two weeks while Mother and her husband were incarcerated. Mother testified that she
asked her sister if she and Mr. Westley would watch the children; Ms. Westley consulted
with Mr. Westley before saying yes; the couple agreed to have the children in their home;
and Mother expected Mr. and Ms. Westley to provide food for the children while caring
for them. Victim testified that on the first day of her stay with the Westleys, it was
Mr. Westley who picked her up from school. Brother testified that Mr. and Ms. Westley
would both take him to the park during their stay. And Ms. Fleming testified that when
the abuse was first reported, Mother “had confirmed that Mr. Westley and his wife . . . had
watched the children for a two-week period while she was incarcerated.”
The evidence was sufficient for a jury to conclude that Mother had voluntarily
entrusted both her sister and Mr. Westley with the care and supervision of Victim and that
Mr. Westley had at least implicitly consented to the arrangement. Although there was other
47
testimony that could potentially have supported a conclusion that only Mother’s sister
accepted supervision of the children, “[i]t is ‘the jury’s task to resolve any conflicts in the
evidence and assess the credibility of witnesses.’ . . . In so doing, the jury ‘can accept all,
some, or none of the testimony of a particular witness.’” Correll v. State, 215 Md. App.
483, 502 (2013) (quoting Allen v. State, 158 Md. App. 194, 251 (2004)). Accordingly, we
will affirm Mr. Westley’s conviction for child sexual abuse based on the modality of
responsibility for supervision of a minor. See Crim. Law § 3-602(b)(1).
JUDGMENTS OF THE CIRCUIT
COURT FOR WICOMICO COUNTY
AFFIRMED. COSTS TO BE PAID
BY APPELLANT.
48