Benner v. State, 0401
| Decision Date | 03 August 2016 |
| Docket Number | No. 0401,0401 |
| Parties | DEAN LEE BENNER v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
DEAN LEE BENNER
v.
STATE OF MARYLAND
No. 0401
COURT OF SPECIAL APPEALS OF MARYLAND
September Term, 2015
August 3, 2016
UNREPORTED
Berger, Arthur, Reed, JJ.
Opinion by Arthur, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
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In August of 2013, the Howard County Police Department received a report that appellant, Dean Lee Benner, had sexually abused a person when that person was a child.1 When the police interviewed the victim, then 23 years old, he told them that between 1997 and 2003 Benner had sexually abused him on repeated occasions after holding a gun to his head or a knife to his throat and threatening that he would kill him and his family if he did not comply with Benner's sexual demands. The victim reported that during the sexual assaults, and at other unspecified times, Benner used an "instant-matic" [sic] camera to photograph him while he was naked. The victim said that the sexual abuse took place at Benner's residence, which Benner shared with his mother, as well as at a warehouse where Benner worked and at a farm owned by one of Benner's friends.
Benner was arrested and charged with child abuse, first-degree sexual offense, second-degree sexual offense, and third-degree sexual offense. A jury in the Circuit Court for Howard County found Benner guilty of all of the offenses that were submitted for its consideration.2 The circuit court sentenced Benner to serve an aggregate sentence of life plus 215 years.3
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In his timely appeal, Benner raises five questions:
1. Did the motions court err in denying the motion to suppress the evidence seized pursuant to the search and seizure warrant?
2. Did the circuit court err in allowing the introduction of prejudicial other-crimes evidence?
3. Did the trial court err by admitting an accident report that was generated by police officers in violation of the rule against hearsay?
4. Did the trial court err in permitting the State to introduce irrelevant and prejudicial evidence?
5. Did the trial court fail to properly instruct the jury on the elements of first-degree sexual offense?
Seeing neither error nor abuse of discretion, we shall affirm the judgments.
I. Denial of Motion to Suppress Photographs
On the basis of the victim's statements, the police obtained a search warrant for the home that Benner shared with his mother. The warrant authorized the police to search for and seize the following items:
1) Indicia of occupancy or use consisting of articles of personal property tending to establish that Dean Lee Benner lives at the premises located at 6375 Greenfield Rd Apt 1503, Elkridge, Howard County, Maryland 21075 . . . .* * *
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2) Any and all instant-matic [sic] cameras . . . .* * *
4) Any developed picture/photographs from an instant-matic [sic] camera. . . .* * *
5) Any and all images of possible child pornography, such as but not limited to prints, photographs or pictures . . . .
6) Any and all images of possible child erotica, such as but not limited to prints, photographs or pictures . . . .* * *
11) Photographs of the interior and exterior of the residence . . . .
12) Any and all pornographic material that would show an interest in having sex with young males . . . .* * *
Pursuant to the warrant, the police seized a number of items, including a photograph of an unidentified boy and certain photographs contained in a green photo album and in a large bag of photographs. Benner moved to suppress those materials. The circuit court denied the motion, concluding that the seized photographs fell within the first provision of the warrant, "indicia of occupancy or use consisting of articles of personal property tending to establish that [Benner] lives at the residence."4
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Benner contends that the suppression court erred in denying his motion, because, he says, those items fall outside the scope of the search warrant at issue. Specifically, Benner claims that because the photographs were neither "instant-matic" [sic] photographs, nor evidence of erotica or pornography, nor evidence of any crime, they did not fall within the scope of the warrant. Finally, he asserts that because police seized random items not specifically enumerated in the warrant, they turned the warrant into a "general warrant," which is constitutionally prohibited.
In an earlier appeal in which Benner unsuccessfully challenged another set of convictions that grew out of this very same search warrant, this Court rejected contentions that are identical to the ones that Benner is now making. Dean Lee Benner v. State, No. 633, Sept. Term 2015 (May 18, 2016). In brief, this Court reasoned that the photographs fell within the paragraph of the warrant concerning indicia of Benner's occupancy, as they were articles of personal property tending to show that he lived at the premises. Id. at 5. We have attached a copy of that opinion as an appendix to this opinion. Rather than reiterate the reasoning in the earlier opinion, we adopt it and incorporate it into this opinion. On the basis of the earlier opinion, we affirm the denial of Benner's motion to suppress.
II. Admission of Other-Wrongs Evidence
In the course of their investigation, the police collected evidence indicating that, during the period when Benner was sexually abusing the victim, he allowed the victim and other young boys under his supervision to play with firearms, drive forklifts, drink alcohol, and smoke marijuana. Before trial, the State moved in limine to allow the
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admission of this "bad acts evidence" to "show the context of the crime" and the circumstances under which it occurred. Benner filed an opposing motion, requesting that the court exclude the evidence. The court granted the State's motion, ruling that the evidence was relevant to show opportunity and to "put things in context." In addition, the court ruled that evidence of availability of weapons was admissible to show a "fearful or intimidating atmosphere." The court found that Benner's participation in the other wrongs had been proven by clear and convincing evidence.
Benner asserts that the admission of this evidence at his trial "violated the prohibition against other crimes or bad acts evidence."
Maryland Rule 5-404(b) prohibits the admission of evidence of other wrongs committed by the defendant if it is presented "to show action in conformity therewith[.]" Md. Rule 5-404(b). That same evidence may be admissible, however, if it is presented for another purpose, such as demonstrating "proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident." Id.
Preliminarily, we must determine whether Benner has preserved this issue for appellate review. It was not sufficient for Benner merely to raise the other-wrongs issue in a motion in limine, as he did; it was also incumbent upon him to make a proper objection when the State offered the objectionable evidence at his trial. See, e.g., Wilder v. State, 191 Md. App. 319, 354 (2010).
A ruling on a motion in limine "is not a ruling on the evidence, but [ ] merely a procedural step prior to the offer of evidence, which serves the purpose of pointing out
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before trial certain evidentiary rulings that the court may be called upon to make." Brown v. State, 90 Md. App. 220, 224 (1992) (citation omitted). An objection is waived unless it is made "at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent." Md. Rule 4-323(a). "[T]o preserve an objection, a party must either object each time a question concerning the [matter is] posed . . . or request a continuing objection to the entire line of questioning." Wimbish v. State, 201 Md. App. 239, 261 (2011) (citation and internal quotation marks omitted).
On many occasions during the course of Benner's trial, the State elicited evidence of Benner's other wrongs, including evidence that Benner allowed boys to drive forklifts around the warehouse where he was employed, encouraged the boys to drink alcohol and smoke marijuana that he provided, and permitted the boys to play with guns that he owned. Benner's attorney objected to virtually none of the State's questions. Because Benner's attorney neither made timely objections nor requested a continuing objection to this line of questioning, Benner did not preserve this issue; therefore, it is not properly before this Court for appellate review. Md. Rule 4-323(a); Wimbish, 201 Md. App. at 261.5
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III. Admission of Accident Report
At Benner's trial, the victim testified that he lived with Benner during a two-week period. During that period, the victim would sometimes go to work with Benner. On one occasion during that period, the victim was involved in an automobile accident while Benner was driving a vehicle that belonged to his employers. Benner's employers learned of the accident, and a copy of the police report of the accident was placed in Benner's personnel file.
While questioning the representative of Benner's former employer, Sharon Cugle, the State moved to admit a copy of the accident report. The report contains, among other things, a brief description of the accident; the time, date, and location of the accident; the names and addresses of the drivers and the passenger in Benner's vehicle; the year, make, and model of the vehicles involved; the vehicle identification numbers for those vehicles; the driver's license numbers for both drivers; the United States Department of Transportation number for the commercial vehicle that Benner was driving; and the identity of the insurers for both vehicles. The report lists the victim as passenger and states that his address is the same as Benner's.
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Benner contends that the court erred in admitting the police report. He contends that the...
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