Bowling v. State, 97

• Decision Date: 02 February 1984
• Docket Number: No. 97,97
• Citation: 470 A.2d 797,298 Md. 396
• Parties: William Theodore BOWLING, Jr. v. STATE of Maryland. Sept. Term 1982.
• Court: Maryland Court of Appeals

Page 396

298 Md. 396

470 A.2d 797

William Theodore BOWLING, Jr. v. STATE of Maryland.

No. 97 Sept. Term 1982.

Court of Appeals of Maryland.

Feb. 2, 1984.

Patrice E. Lewis and Joseph A. De Paul, College Park (Joseph A. De Paul, P.A., College Park, on brief), for appellant.

Stephen Rosenbaum, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

Argued before SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ., and W. ALBERT MENCHINE, Retired, Specially Assigned Judge.

ELDRIDGE, Judge.

Under the circumstances of this case, we hold that the doctrine of collateral estoppel prevents the State from criminally trying the defendant on charges of sexual assault and related offenses when, in a prior civil proceeding based upon the same alleged incidents, the court dismissed the action on the ground that the State had failed to prove that the defendant had committed the acts.

On November 7, 1981, Staci Lenee Bowling, then fourteen years old, went to the Charles County Sheriff's Department and alleged that, beginning in August 1981 and on other occasions thereafter, her adoptive father, William Theodore Bowling, Jr., had engaged in sexual conduct with her in their home. She indicated that she was seeking shelter in the home of her natural father, Richard Eddy. Subsequently a Child in Need of Assistance (CINA) petition was filed in the Circuit Court for Charles County. ¹ The basis for the petition was Staci's allegations of sexual abuse. ² Staci was placed in the custody of the Charles County Department of Social Services, and, at the time of the hearing, she was living with Mr. Eddy.

The hearing on the petition was held before the circuit court on December 14, 1981, to determine whether Staci Lenee Bowling was a "child in need of assistance" within the meaning of § 3-801(e). The testimony at the hearing dealt almost exclusively with whether or not the alleged incidents of sexual misconduct had actually occurred.

Following the presentation of the evidence, the circuit judge found as follows:

"In this case the allegations as to the failure to receive ordinary and proper care and attention involve an allegation by the child that she was sexually abused by her adoptive father, Mr. Bowling, initially on the 16th day of August and on two or three, and then on cross-examination three or four subsequent occasions, the dates of which are apparently marked on her calendar, but not available to her today ....

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"And the evidence in this case in my mind is in a state of even balance. I have not been persuaded by a preponderance of the evidence, in spite of the fact that I have tried in looking at this case to look at it in a light most favorable to the young lady, and cross-examined all of her witnesses trying to see if I could detect any flaw in their statements that would convince me that her side is right and her parents' side is wrong.

"The State, of course, has the burden of proving that to me. And I would say that I am not persuaded by a preponderance of the evidence that this sexual abuse did, in fact, take place." (Emphasis added.)

After discussing the tensions existing within the Bowling family, the circuit judge addressed the issue of whether or not to grant the CINA petition. The court viewed § 3-801(e) as providing for a two-prong test to determine whether a child is "in need of assistance" within the meaning of the statute. According to the court, one prong of the test necessitated a finding that "the parents, guardians or custodian are unable or unwilling to give proper care to the child and his problem," and the second prong required a finding "that her parents are doing something or failing to do something with respect to her care and attention that a parent should be providing." As the court was not persuaded that the sexual abuse had occurred, it found that the second "prong" of the test was not met. The circuit judge concluded:

"I think, in fact, that what we are dealing with here is a case of a child in need of supervision as opposed to a case of a child in need of assistance. And I must, I feel, under the allegations contained in the case, dismiss the petition, because I do not feel the State has proven ... that case." (Emphasis added.)

Although it dismissed the CINA petition, the court indicated that it would be favorably disposed to granting a Child in Need of Supervision (CINS) petition. ³

Subsequently an indictment was filed in the Circuit Court for Charles County charging William Theodore Bowling, Jr., with sexual offenses, child abuse and assault upon his daughter Staci. The indictment was grounded on the identical factual allegations which formed the basis for the earlier CINA petition. The defendant moved to dismiss the indictment, claiming that the December 14, 1981, order of the Circuit Court for Charles County dismissing the CINA petition precluded the State from relitigating the issue of whether defendant had engaged in the charged conduct. In a memorandum supporting the motion to dismiss, the defendant cited both the common law doctrine of collateral estoppel and collateral estoppel as embodied in the double jeopardy prohibition of the Fifth Amendment, although his principal reliance was upon the latter. The circuit court denied the motion on the ground that "jeopardy ... did not attach" at the juvenile hearing. The defendant took an immediate appeal, and, prior to argument in the Court of Special Appeals, this Court issued a writ of certiorari. ⁴

As pointed out by Judge Delaplaine for the Court in Scarlett v. State, 201 Md. 310, 318, 93 A.2d 753, cert. denied, 345 U.S. 955, 73 S.Ct. 937, 97 L.Ed. 1377 (1953), the common law "doctrine ... which precludes relitigation of the same factual issues in any subsequent trial, applies to criminal as well as civil proceedings and operates to conclude those matters in issue which the verdict determined although the offense is different." See Cook v. State, 281 Md. 665, 668, 381 A.2d 671, cert. denied, 439 U.S. 839, 99 S.Ct. 126, 58 L.Ed.2d 136 (1978) ("It is beyond question that the closely related doctrines of res judicata and collateral estoppel apply to criminal as well as civil causes"); Rouse v. State, 202 Md. 481, 486, 97 A.2d 285, cert. denied, 346 U.S. 865, 74 S.Ct. 104, 98 L.Ed. 376 (1953); State v. Coblentz, 169 Md. 159, 164-166, 180 A. 266 (1935). Not only is collateral estoppel applicable to criminal cases as a common law matter, but the principle of collateral estoppel is embodied in the Fifth Amendment's prohibition against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Carbaugh v. State, 294 Md. 323, 329, 449 A.2d 1153 (1982); Powers v. State, 285 Md. 269, 283-284, 401 A.2d 1031, cert. denied, 444 U.S. 937, 100 S.Ct. 288, 62 L.Ed.2d 197 (1979); Cook v. State, supra, 281 Md. at 668 n. 2, 381 A.2d 671; Cousins v. State, 277 Md. 383, 398, 354 A.2d 825, cert. denied, 429 U.S. 1027, 97 S.Ct. 652, 50 L.Ed.2d 631 (1976).

As the above-cited cases make clear, for the State to be precluded in a criminal trial from relitigating an issue resolved against it at a prior proceeding, the following requirements ordinarily must be met. First, the earlier proceeding must have ended with a final judgment or "final determination" of the issue. Cousins v. State, supra, 281 Md. at 398, 354 A.2d 825. See Carbaugh v. State, supra, 294 Md. at 329, 449 A.2d 1153 (assuming that the payment of a traffic ticket was a "final judgment" determining the issue that the defendant was the driver of the vehicle); Cook v. State, supra. Second, the defendant must have been a party to both proceedings. Carbaugh, 294 Md. at 330, 449 A.2d 1153. ⁵ Third, the resolution of the issue at the earlier proceeding cannot have been unnecessary or mere dicta; instead it must have been an ingredient or a basis of the decision. As the Court put it in Scarlett v. State, supra, 201 Md. at 318, 93 A.2d 753, the factual issue must have been a matter "which the verdict determined." Or, as stated in more recent cases, it must have been "an issue of ultimate fact." Ashe v. Swenson, supra, 397 U.S. at 443, 90 S.Ct. at 1194; Powers v. State, supra, 285 Md. at 279, 282, 401 A.2d 1031; Cousins v. State, supra, 277 Md. at 398, 354 A.2d 825. In applying this requirement, however, the Supreme Court in Ashe, 397 U.S. at 444, 90 S.Ct. at 1194, cautioned that

"the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to 'examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.' The inquiry 'must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.' "

See Powers, 285 Md. at 288, 401 A.2d 1031.

In the case at bar, the above-discussed requirements were satisfied. There was unquestionably a final judgment terminating the earlier CINA proceeding. Moreover, the defendant Bowling was clearly a party to the CINA proceeding. Under Code (1974, 1980 Repl.Vol., 1983 Cum.Supp.), § 3-801(q) of the Courts and Judicial Proceedings Article, a parent is a party to a CINA proceeding of which his or her child is the subject. ⁶ The CINA proceeding subjected Bowling to the possible imposition of sanctions, including the loss of custody of his daughter ⁷ and an order "to pay a sum in the amount the court directs to cover" her support. ⁸ Finally, whether or not Bowling committed the alleged sexual abuse was an ultimate issue of fact resolved against the State at the CINA proceeding. The failure of the...