Bayne v. State

• Decision Date: 01 September 1993
• Docket Number: No. 229,229
• Parties: Melvin BAYNE v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 149

98 Md.App. 149

632 A.2d 476

Melvin BAYNE v. STATE of Maryland.

No. 229, Sept. Term, 1993.

Court of Special Appeals of Maryland.

Nov. 3, 1993.

Sherrie B. Glasser, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Submitted before FISCHER, CATHELL and DAVIS, JJ.

CATHELL, Judge.

Melvin Bayne, appellant, was convicted by a jury in the Circuit Court for Baltimore City of second degree rape, child abuse, assault, assault with intent to rape, sexual offense in the third degree and sexual offense in the fourth degree. He was sentenced to fifteen years on the child abuse offense with all but ten years suspended, to a concurrent term of ten years on the second degree rape offense, and to a concurrent ten year term on the third degree sexual offense count. The trial court merged the remaining counts. Appellant presents four questions on appeal:

1. Was the evidence insufficient to establish appellant's guilt of second degree rape?

2. Did the trial judge err in failing to merge the conviction and sentence for third degree sexual offense into the conviction for second degree rape?

3. Did the trial judge improperly curtail appellant's cross-examination of the victim?

4. Did the trial judge err in finding that the statements of the alleged victim were admissible as an excited utterance?

The victim, five years old when this incident occurred, lived with her mother and appellant. In July of 1992, she was visiting the home of her uncle and aunt and their child, a male cousin. Her uncle entered the cousin's bedroom and observed the cousin (his son) on his back on a bed with the victim on top of him, "riding him in a sexual motion." The uncle accosted the victim, asked her what she was doing and "if anybody showed her [to act that way]?" She fled the room, left the house and met her grandmother, Judy, who was just arriving. After the uncle and aunt related the uncle's observations to the grandmother, the grandmother left to take the victim home.

When the victim and her grandmother arrived at the victim's house--where the appellant also resided--the victim began to scream and would not go in. Subsequently, the victim told the grandmother what had happened; saying that appellant had touched her all over and had hurt her. The victim put her hands between her legs to indicate where she had been touched. The police were contacted and the victim was taken to the hospital.

The victim testified at trial that appellant had rubbed his "private" on her "privates." The grandmother testified that she had previously observed black and blue marks on the victim's "behind" and between her legs and had on one occasion observed appellant entering the victim's bedroom at 3:00 a.m. We shall further address the facts as we discuss the issues.

I Sufficiency of the Evidence Second Degree Rape

Maryland Annotated Code article 27, section 463(a)(3) (1957 & 1992 Repl.Vol.) provides:

A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person ... [w]ho is under 14 years of age and the person performing the act is at least four years older than the victim.

"Penetration, however slight, is evidence of vaginal intercourse." Md.Ann.Code, Art. 27, § 461(g) (1957 & 1992 Repl.Vol.). Appellant contends that since the victim did not expressly testify that penetration occurred, there was insufficient evidence to convict him of second degree rape. We disagree.

In addition to those facts we have stated above, a pediatrician, qualified as an expert, testified that a physical examination revealed a stretched hymen which was "consistent with healed penetrating genital sexual injury." He also testified that there was a "small inferior labial adhesion." On cross-examination, the following occurred:

BY MR. RUBENSTEIN [Defense Counsel]:

Q Are you saying that the findings are consistent with a sexual injury due to penetration?

A Yes. We're talking about penetration of the Labial plane. So that the outer female genitalia in order for this type of stretching to occur has been penetrated....

....

Q I understood you to say there was penetration.

A Yes, the hymen, unfortunately in this child, has been stretched and remember we talked about penetration of the labial plane.

....

Q ... Now let me ask again. In [sic] your finding indicate penetration?

A My finding indicated genitive penetrating injury and by definition as penetration of the labial plane. It doesn't mean that the vagina has to be torn.

Q But it does indicate that there was physical penetration of some sort?

A Yes.

The court then asked the doctor:

THE COURT: Q. ... [T]here was penetration?

A ... [Y]es.

The standard for our review of the sufficiency of the evidence is "whether after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bloodsworth v. State, 307 Md. 164, 167, 512 A.2d 1056 (1986) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). See also McMillian v. State, 325 Md. 272, 289, 600 A.2d 430 (1992); Wilson v. State, 319 Md. 530, 535, 573 A.2d 831 (1990); and Moore v. State, 84 Md.App. 165, 176, 578 A.2d 304, cert. denied, 321 Md. 385, 582 A.2d 1256 (1990). This standard applies to all criminal cases, including those resting upon circumstantial evidence. Wiggins v. State, 324 Md. 551, 567, 597 A.2d 1359 (1991), cert. denied, 503 U.S. 1007, 112 S.Ct. 1765, 118 L.Ed.2d 427 (1992). This is because, generally, "proof of guilt based in whole or in part on circumstantial evidence is no different from proof of guilt based on direct eyewitness accounts." Eiland v. State, 92 Md.App. 56, 67, 607 A.2d 42 (1992), rev'd on other grounds sub nom., Tyler v. State, 330 Md. 261, 623 A.2d 648 (1993). Weighing the credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the fact finder. See Binnie v. State, 321 Md. 572, 580, 583 A.2d 1037 (1991); and McKinney v. State, 82 Md.App. 111, 117, 570 A.2d 360, cert. denied, 320 Md. 222, 577 A.2d 50 (1990). In performing this fact-finding role, the jury has authority to decide which evidence to accept and which to reject. In this regard, it may believe part of a particular witness's testimony but disbelieve other parts of that witness's testimony. See Muir v. State, 64 Md.App. 648, 654, 498 A.2d 666 (1985),aff'd, 308 Md. 208, 517 A.2d 1105 (1986).

In sum, the evidence available to the jury was (1) the "acting out" with the victim's cousin; (2) her assertion that appellant had done the same with her; (3) that appellant had used his private to touch her private; and (4) the expert's testimony of a penetrating injury consistent with penile penetration. That evidence, if believed by the fact finder, as it apparently was, is sufficient to support the verdict that appellant was guilty of second degree rape.

II Merger

We have examined the transcripts of the testimony. Though there were extensive efforts by the prosecutor to elicit from the complaining witness testimony that appellant had abused the victim on more than one occasion, those efforts were unsuccessful.

After the victim testified on direct that appellant had rubbed his "private" on her "private," she was asked:

Q. ... [D]o you remember whether Butch [appellant] ever touched you in another way that made you feel funny?

A. No, I don't remember.

....

Q Did any other part of Butch's body touch your body?

A. No.

Later, on redirect, she was asked how many times appellant had done "that to you." She responded, "I don't know." ¹ In light of the victim's assertion that appellant touched her with his "private" on at least one occasion and her failure to remember whether there were other occasions, we must, in reviewing this issue, assume that only one assault took place and that it involved the appellant's penis penetrating the victim's genitals. We shall resolve the merger issue in that context.

We next note that the State attempts to distinguish Snowden v. State, 321 Md. 612, 583 A.2d 1056 (1991), from the case sub judice by arguing that, in the non-jury Snowden case, there was an "inability to determine whether the accused was subjected to separate convictions and punishment for the same act," while in the present case that problem does not exist because the "jury here was specifically informed of the definition of rape and sexual contact." The State references the court's instruction to show that the jury was given specific definitions.

We have reviewed the trial court's jury instruction; it tracks almost verbatim the language of the Maryland Criminal Pattern Jury Instruction, MPJI-Cr 4:29.8 "Sexual Offense--Third Degree Sexual Offense (Age)."

The case sub judice involves multiple sexual offense charges and, as we have said, the facts are insufficient to overcome the victim's testimony that she did not remember more than one incident and that she did not remember what other parts of her body he might have touched. We have examined the instruction in light of these circumstances, and an omission of a definition from the instruction may well be determinative. We explain.

The trial judge correctly instructed the jury that a third degree sexual offense requires sexual contact. He did not, however, define "sexual contact." Maryland Code Annotated article 27, section 461(f) (1957 & 1992 Repl.Vol.) defines sexual contact, in part, as including "penetration, however slight, by any part of a person's body, other than the penis ... into the genital ... opening ... if that penetration can be reasonably construed as being for the purposes of sexual arousal or gratification...." (Emphasis added.)

If the definition of sexual contact had been...