Anderson v. State

• Decision Date: 04 February 2002
• Docket Number: No. 2890,2890
• Citation: 790 A.2d 732,142 Md. App. 498
• Parties: Wendell ANDERSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

790 A.2d 732

142 Md. App. 498

Wendell ANDERSON v. STATE of Maryland.

No. 2890, Sept. Term, 2000.

Court of Special Appeals of Maryland.

February 4, 2002.

Thomas S. Hood, Towson, for appellant.

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Sandra A. O'Connor, State's Atty. for Baltimore County, Towson, on the brief), for appellee.

Argued before JAMES R. EYLER, ADKINS, and KRAUSER, JJ KRAUSER, Judge.

Appellant, Wendell Anderson, a teacher at Kenwood High School, was accused of having sexual intercourse with a ninth grade Kenwood student. He was subsequently charged with child abuse and five related offenses. Following a bench trial in the Circuit Court for Baltimore County, he was convicted of child abuse and all but one of the related offenses.¹ He was thereafter sentenced to a term of three years' imprisonment for child abuse and a term of one year imprisonment for third degree sex offense.² After suspending all but one year of the child abuse sentence, the court ordered that the two sentences were to be served concurrently.

The principal issue presented by this appeal is whether consensual sexual intercourse between a teacher and a fourteen-year-old student that occurs after school hours and off school premises can constitute "child abuse" under Maryland law. Because we find that a parent impliedly consents to a teacher taking all reasonable measures to assure the safe return of his or her child from school, including personally driving that child home; because appellant assumed that responsibility when he agreed to drive the child home; because the events leading up to this unfortunate occurrence were set in motion on school property; and because, at the time of the offense, there had been no temporal break in the teacher and student relationship that existed between appellant and the victim, we shall affirm appellant's conviction for child abuse. For the reasons that follow, the resolution of that question largely renders appellant's remaining issues concerning his motion to sever and the admission of a taped conversation between appellant and the student moot. Consequently, we shall also affirm his conviction for third degree sex offense.

Because appellant is challenging the evidentiary basis of the circuit court's rulings at both the motions hearing and appellant's trial, we shall briefly review the evidence presented, first, at the motions hearing and then at trial.

Motions Hearing

Before trial, appellant moved to suppress the recording of a telephone conversation between the victim ("Cindy") and appellant, which had been recorded by Detective Joseph Donohue, the officer investigating Cindy's accusations. That telephone conversation had been intercepted pursuant to the Maryland Wiretapping and Electronic Surveillance Act ("the Act"), Md.Code Ann. (1998 Repl.Vol., 2000 Cum. Supp.), §§ 10-401 through 10-414 of the Courts and Judicial Proceedings Article, which permits law enforcement officers investigating an allegation of child abuse to intercept telephone conversations to obtain evidence of that offense so long as one party to the conversations consents to the interception. See Cts. & Jud. Proc. § 10-402(c)(2).

At the motions hearing, Detective Donohue testified that when he was a member of the Family Crimes Unit of the Baltimore County Police Department, he was assigned to investigate a claim by a fourteen-year-old female student that appellant had had sexual intercourse with her. During that investigation, Detective Donohue interviewed the student, Cindy. Cindy told Detective Donohue that, while she was staying after school to assist her math teacher, appellant had offered her a ride home. She accepted that offer and got into his car. On the way home, appellant asked her if she would like to play pool at his house. She agreed. At appellant's house, he and Cindy played pool and then went into the living room. "One thing led to another," according to Cindy, and their kissing "eventually progressed into sexual intercourse."

Detective Donohue also interviewed Cindy's math teacher, Nina Riggs. During that interview, Ms. Riggs informed the detective that she had had a telephone conversation with Cindy in which Cindy stated that she had sex with appellant. Believing that he was investigating a case of child abuse and related sex offenses, Detective Donohue sought and obtained consent from Cindy and her mother, under the Maryland Wiretap and Electronic Surveillance Act, to record a telephone conversation between Cindy and appellant. During the recorded telephone conversation, appellant did not deny that he had sexual intercourse with Cindy, a fact which the circuit court found particularly significant, and reminded Cindy "you told me you have been saying all weekend you would protect me, this is a test to that promise." Appellant was subsequently charged with child abuse and a number of related sex offenses.

Holding that Detective Donohue had a good faith belief that he was investigating a case of child abuse, the court denied the motion to suppress. Appellant then moved to sever his trial on the child abuse charge from the other charges, claiming that the introduction of the recorded telephone conversation on the child abuse charge would prejudice his trial on the other counts of his indictment. That motion was also denied.

Trial

At trial, the fourteen-year-old victim testified that she had come to know appellant through her math teacher, Nina Riggs. She explained that "once or twice a week," she would stay after school to help Ms. Riggs "tutor other students" or to receive tutoring herself. Appellant, she stated, "would come into the room where [she] was staying after school to help out." Cindy was not a student of appellant's, nor was she in any clubs or teams that appellant coached, but she "occasionally asked him for ... help with a math situation if [she] couldn't get a hold of Ms. Riggs." In addition, appellant had driven her home from school on two or three occasions.

On June 9, 2000, the last day of the school year, the school day ended at noon. That day, Cindy "stayed after with Ms. Riggs to help her with her room." While she was walking in the hallway with Ms. Riggs and her daughter, whom Ms. Riggs had brought to school that day, appellant approached and invited them to go to lunch with him. They then left school property with appellant, in his car, and had lunch at a nearby McDonald's restaurant. About a half hour later, all four of them returned to school in appellant's car and Cindy resumed "help[ing] Ms. Riggs with her room and her daughter." When appellant asked Cindy if she wanted a ride home, she accepted his offer.³ Sometime after 2 p.m., appellant and Cindy left the school in appellant's car. While driving Cindy home, appellant asked her if she wanted to play a game of pool at his house; she replied that she did. Appellant then drove Cindy to his house.

At appellant's home, the two played pool and then went into appellant's living room. After rubbing Cindy's face, appellant began to kiss her. He kissed her awhile and then led her to his bedroom where they had sexual intercourse.

After Cindy testified, the State played the recorded telephone conversation between Cindy and appellant. As noted earlier, during that recorded conversation appellant did not deny that he had had sexual intercourse, and reminded Cindy "you told me you ... would protect me, this is a test to that promise."

Appellant, however, maintained his innocence throughout the trial, testifying that he took Cindy to his home not to play pool, but out of concern for her safety. He stated that when they were about two blocks from her home, she said "I can't go home." When appellant asked "why not" she replied, "I can't tell you. I just can't go home right now." She continued, "I just need someone I can talk to right now."

They drove around for "fifteen, thirty minutes." Appellant explained, "I was trying to find out from her why she didn't feel she could go home. I was concerned that the abuse that was at home with her mother and the problems there were still a problem." He insisted, "I didn't want to deliver her to an unsafe situation."

While "circling her neighborhood," appellant stated that he realized that "[i]t was very hot outside." He told Cindy that he needed "to go home and check on [his] dog." Appellant drove to his house, "let [Cindy] into the house," and "went to the backyard to check on the dog." After checking on his dog, appellant joined Cindy inside.

Inside the house, Cindy said "she couldn't go home yet." When appellant asked her when she could, she responded, "sometime between 5:00 and 6:00." Realizing that they "had about an hour to kill," they decided to play pool.

After playing pool, the two went to appellant's living room. Sitting on the living room sofa together, Cindy told appellant how much she appreciated his spending time with her, listening to her, and taking care of her. She then leaned over, according to appellant, and kissed him.

After that kiss, appellant claimed, he drove her home. He further testified that he did not have sexual intercourse with Cindy on that day, or on any other.

Appellant's counsel then replayed the recorded conversation between appellant and Cindy, stopping periodically to request an explanation from appellant as to the meaning or context of the preceding recorded comments. As the court apparently rejected his explanations in rendering its verdict, we need not recount them now. Cindy's mother testified that she entrusted Kenwood High School with her daughter on school days. She further testified that when her daughter "stayed after school to help a teacher, her daughter would call her [and] either she or her sister's boyfriend would pick her up." She also stated that she was unaware that appellant had previously driven her daughter home from school, and, on crossexamination, agreed that she had not...