Bible v. State, 138, September Term, 2008.

• Citation: 411 Md. 138,982 A.2d 348
• Decision Date: 14 October 2009
• Docket Number: No. 138, September Term, 2008.,138, September Term, 2008.
• Parties: Rodney Wayne BIBLE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

982 A.2d 348

411 Md. 138

Rodney Wayne BIBLE v. STATE of Maryland.

No. 138, September Term, 2008.

Court of Appeals of Maryland.

October 14, 2009.

Juan P. Reyes, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), for Petitioner.

Susannah E. Prucka, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen., on brief), for Respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and JOHN C. ELDRIDGE, (Retired, Specially Assigned).

ADKINS, J.

Petitioner Rodney Wayne Bible challenges his conviction for committing sex offenses proscribed under two sections of the Sexual Crimes subtitle of the Criminal Law Article of the Maryland Code (2007 Repl.Vol.) (hereinafter "CL"). He contends that his brief touching of a seven year old child on her buttocks on the top of her clothing was not "sexual contact," which is defined as "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." CL § 3-301(f)(1) (emphasis added). In support of his contention, Bible submits that (1) the buttocks are not covered by the statute, and (2) the evidence produced by the State was not sufficient to establish the necessary mens rea. Although we hold that the buttocks are an "intimate area" for purposes of the statute, we consider the evidence adduced at trial was not sufficient to establish beyond a reasonable doubt that Bible intentionally touched the victim "for sexual arousal or gratification," and accordingly, shall reverse.

STATUTORY PROVISIONS

Sexual offense in the third degree is committed when an individual "engage[s] in sexual contact with another if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim[.]" CL § 3-307(a)(3). Sexual offense in the fourth degree proscribes "sexual contact with another without the consent of the other[.]"¹ CL § 3-308(b)(1).

FACTS & LEGAL PROCEEDINGS

Around 4:00 p.m. on August 25, 2006, seven year-old Hannah S. accompanied her mother and two siblings to the Goodwill Store in Hagerstown. Upon arriving, Hannah, without her mother or siblings, proceeded to the area of the store containing toys, which also housed furnishings and electronics. Though Hannah's mother ("Mrs. S.") or sister periodically checked on her, the only other individuals in that area of the store while Hannah was present were Curtis Howell, a Goodwill employee, and the defendant forty-nine year-old Rodney Wayne Bible. Hannah and her family were in the store for approximately thirty to forty minutes. While they were in the store, Hannah did not notify anyone of a problem.

When Hannah left the store and returned with her family to their car, and noticed Bible getting into the vehicle next to them, she became "upset" and "anxious." She pointed to Bible and said to her mother, "Mommy, that man's a pervert ... [h]e touched me." Mrs. S followed Bible for a short while and recorded the make, model, color, and license plate number of Bible's car. After returning to the Goodwill Store and informing Howell of Hannah's statements, Mrs. S. proceeded to the police station and made a report of what happened.

The police traced the car to Bible and interviewed him at his apartment. The police officer later testified that when he asked Bible if he was present at the Goodwill store two days earlier, "[a]t first, [Bible] denied that he was there. He wasn't for sure [sic] if he was there or not. And then as we kept talking, he did say he was there" looking at VCRs. Bible also said he hadn't noticed any children in the area of the store in which he was shopping. During the police investigation, Hannah identified Bible in a photo array as the man who touched her in the store.² Howell was able to identify Bible as having been present in the store, but did not observe Bible touch Hannah. Also presented at trial was surveillance video of the area in which the incident took place. However, the video did not provide continual coverage of the area because the surveillance system alternated between cameras, returning to the area in which Hannah and Bible were located every two to four seconds. The video showed both individuals in the area together, with Bible leaving the area at 4:29 PM, and Hannah leaving one minute later. The tape did not show any contact between Bible and Hannah.

Though the State offered testimony by Hannah's mother, two police officers, and Howell, the only evidence regarding the touching and the surrounding circumstances was supplied by Hannah. It is crucial to examine her testimony closely:

[Prosecutor]: Now at some point while you were up there playing with that toy ..., those toys, did you see him again?

[Witness]: Yes.

[Prosecutor]: Where was he?

[Witness]: He was like walking around me.

[Prosecutor]: Did you ..., did you see his face while he was walking around you?

[Witness]: Yes.

[Prosecutor]: And did you keep playing with the toys?

[Witness]: Yes.

[Prosecutor]: Did he ever stop walking around you?

[Witness]: Yes.

[Prosecutor]: And what did he do?

[Witness]: He like ..., I can't remember.

[Prosecutor]: Now when you say you can't remember, you can't remember if he stopped?

[Witness]: I can't remember what he was doing.

[Prosecutor]: Okay. Do you remember what he was doing with you?

[Defense]: Objection at this point, Your Honor.

[The Court]: Overruled. You can answer.

[Witness]: No.

[Prosecutor]: Was he playing with toys?

[Witness]: No.

[Prosecutor]: Did he talk to you?

[Witness]: No.

[Prosecutor]: Well can you tell the ladies and gentlemen of the jury how close he got to you?

[Witness]: He got like a foot away.

[Prosecutor]: Was he in front of you, or behind you, or next to you?

[Witness]: Behind me.

[Prosecutor]: And when he was behind you, Hannah, did anything happen?

[Witness]: Yes.

[Prosecutor]: Can you tell us what happened?

[Witness]: He touched my behind.

[Prosecutor]: Now did he touch your behind more than once?

[Witness]: Yes.

[Prosecutor]: Can you tell the ladies and gentlemen how he touched your behind?

[Witness]: He touched it like two seconds.

[Prosecutor]: Okay. Was it with his hand?

[Witness]: Yes.

[Prosecutor]: Okay, was it on top of your shorts?

[Witness]: Yes.

[Prosecutor]: And was it on top of your underpants?

[Witness]: No.

[Prosecutor]: Did you have shorts ..., did you have underpants on under your shorts?

[Witness]: Yes.

[Prosecutor]: Okay, where was his hand?

[Witness]: On my behind.

[Prosecutor]: Okay. But over top of your shorts?

[Witness]: Yes.

[Prosecutor]: And your underpants were inside your shorts, right?

[Witness]: Yes.

[Prosecutor]: Okay. Now you said it was about two seconds, and did he touch ..., did he just pat you?

[Defense]: Objection, Your Honor, leading.

[Witness]: No.

[The Court]: Overruled. The witness is seven years old. There's got to be some leeway.

[Prosecutor]: Were these ..., so these were not two pats on the behind?

[Witness]: No.

[Prosecutor]: What did it feel like?

[Witness]: It felt like ..., I can't remember.

[Prosecutor]: But are you sure that it was more than one time?

[Witness]: Yes.

[Prosecutor]: Hannah, what did you do when he did that?

[Witness]: I went down to my mom and we left.

At the close of the State's case-in-chief, Bible moved for a judgment of acquittal of the charges of sexual offense in the third degree, sexual offense in the fourth degree, and assault in the second degree.³ He argued that because there was no evidence establishing the touching besides Hannah's testimony, and because her testimony failed to describe the touching in a sufficient manner or show that it was intentional, no reasonable juror could find his guilt beyond a reasonable doubt. The court denied the motion. Bible rested his case without presenting any evidence and again moved for a judgment of acquittal, which was also denied. The jury found Bible guilty on all charges.

On appeal, Bible argued, inter alia, that the evidence was legally insufficient to sustain his conviction for sexual offense in the third and in the fourth degree. In an unpublished opinion, a panel of the Court of Special Appeals affirmed Bible's conviction. First, the court held that Bible had not preserved the issue of sufficiency of the evidence for appellate review because he failed in his motion for judgment of acquittal to specifically argue which elements of the crimes were lacking. The court nevertheless proceeded to address the appeal on the merits and affirm the conviction, holding "that there was sufficient evidence presented which could have persuaded a rational trier of fact beyond a reasonable doubt that the [Bible]'s touching of the victim was intentional, was in an intimate area, and was for no purpose other than his arousal or gratification." The court based this decision upon the facts that Bible touched Hannah's behind more than once, "that the touching was not just a `pat,'" that Hannah's described Bible to her mother as "a pervert," and that Bible initially denied to the police that he was in the Goodwill store that day.

PRESERVATION OF ISSUE ON APPEAL

As a preliminary matter, the State argues that Bible's claim of insufficiency of the evidence for the charge of sexual offense in the third degree is not properly before this Court because Bible did not argue in his trial motion for acquittal which specific elements of the crime were unsupported by evidence. See State v. Lyles, 308 Md. 129, 135-36, 517 A.2d 761, 764-65 (1986). Under Md. Rule 8-131(a), "[o]rdinarily, the appellate court will not decide any ... issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal." In State v. Bell, 334 Md. 178, 188, 638 A.2d 107, 113 (1994), we held "that an appellate court's review of arguments not raised at the trial...