Carranza-Tobar v. State

• Decision Date: 24 January 2019
• Docket Number: No. 1539,1539
• Parties: DAVID CARRANZA-TOBAR v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

DAVID CARRANZA-TOBAR v. STATE OF MARYLAND

No. 1539

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

January 24, 2019

Circuit Court for Baltimore County

Case No. 03-K-16-3867

UNREPORTED

Graeff, Arthur, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Graeff, 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.

Following a bench trial, David Carranza-Tobar, appellant, was convicted in the Circuit Court for Baltimore County of attempted first degree rape, second degree assault, and false imprisonment.¹ The court imposed a sentence of life, all but ten years suspended, for the attempted first degree rape conviction. It merged the second degree assault conviction with the attempted first degree rape conviction for sentencing purposes, and it imposed a concurrent one-year sentence for the false imprisonment conviction.

On appeal, appellant presents the following questions for this Court's review, which we have rephrased slightly, as follows:

1. Did the circuit court abuse its discretion in refusing to strike the testimony of the State's expert witness in forensic sexual assault examination when the State failed to provide notice of the opinions that the expert would offer, as required by Maryland Rule 4-263(d)(8)(A)?

2. Did the circuit court abuse its discretion in refusing to strike the testimony and report of the State's DNA expert when the report did not comply with Maryland Code (2013 Repl. Vol.) § 10-915 of the Courts and Judicial Proceedings Article ("CJP")?

3. Was the circuit court's sentence for attempted first degree rape illegal when the court's actual verdict was guilty of first degree rape, an offense not charged?

For the reasons set forth below, we answer the first question in the affirmative, and therefore, we shall reverse the conviction of attempted first degree rape and remand for further proceedings. We answer the second question in the negative, and therefore, weshall affirm the judgments of the circuit court on the charges of second degree assault and false imprisonment.²

FACTUAL AND PROCEDURAL BACKGROUND

I.The Crime and Investigation

On July 1, 2016, into the early hours of July 2, 2016, the victim, Ms. G., was working at a bar in Baltimore County, Maryland. She testified that, at approximately 12:30 a.m., appellant offered to buy her a drink. It is unclear how many drinks Ms. G. consumed, but there was testimony that she was "drunk, really drunk." After Ms. G. was asked to leave the bar, appellant offered to drive her home, and Ms. G. accepted the offer.³

Ms. G. testified that she got into a van with three men, including appellant. She got into the "middle," one man was in a seat behind her, and the other two men sat in the front passenger and driver seats. The man in the front passenger seat then moved to the middle seat where she was located, and the man in the seat behind her covered her mouth. The men hit her in the head and mouth and removed her shoes and underwear as she struggled to get out of the van. Her underwear was around her knees when she lost consciousness. When Ms. G. woke up, her skirt was "all the way up" and one man was on top of her,"wanting to have sex with" [her]. Ms. G. pushed the man off her, and the men proceeded to shove her out of the van.

Ms. G. went to a nearby house, knocked on the door and asked for help, and the homeowner called the police. The police arrived at approximately 3:00 a.m., and Ms. G. was taken to the hospital, where Ms. Rosalyn Berkowitz, an expert in sexual assault forensic examination, conducted a SAFE exam.⁴

Appellant testified to a different scenario of events. He stated that only he, Ms. G., and Heriberto Rodriguez Gutierrez were in the vehicle. He got into the "middle seat" of the vehicle, a van, and proceeded to lie down. Mr. Gutierrez, with whom appellant had gone to the bar, was in the driver's seat, and Ms. G. was in the "last" seat. Appellant fell asleep, and he woke up to Mr. Gutierrez touching his legs and saying that they needed to get Ms. G. out of the car because she had become "crazy." Together, appellant and Mr. Gutierrez forced Ms. G. out of the van, causing her to fall face down. He and Mr. Gutierrezgot back into the van, and Mr. Gutierrez dropped him off approximately a block and a half from his home. Appellant went home and went to sleep.

Later that day, after reviewing surveillance video outside the bar and identifying the van outside, the Criminal Apprehension Support Team located the van in question and arrested the two males inside the van. The driver was Mr. Gutierrez; the passenger was not charged. The vehicle was towed to police headquarters, and during a search of the van pursuant to a warrant, the police found Ms. G's phone, wallet, underwear, and shoes. On July 3, 2016, appellant was arrested at his home.

II.Trial

Trial began on June 20, 2017.⁵ Ms. Berkowitz testified as the State's expert in sexual assault forensic examination, and her SAFE report was entered into evidence. The report had diagrams and notes indicating that Ms. G. had bruising, swelling, and abrasions on multiple parts of her body, including multiple bruises on her left thigh near the groin. The report included a statement that no genital injuries were noted. The report did not include any opinions or conclusions.

At trial, Ms. Berkowitz testified that she could conclude, based upon a reasonable degree of medical certainty, that the bruising she found on Ms. G.'s inner thigh was "consistent with finger tip bruising" from "trying to push the thigh[s] apart." She stated that the injuries on Ms. G.'s legs and back were consistent with "road rash," or "blunt force trauma" from portions of her skin "making contact with a rough surface." Ms. Berkowitz also testified that Ms. G.'s injuries were consistent with the history Ms. G. provided her.

Eileen Bemelmans testified as an expert in DNA analysis. She explained that an external genitalia swab from Ms. G. was analyzed and did not reveal any male DNA. A fingernail swabbing from Ms. G.'s right hand, however, produced "a mixture of two individuals." Ms. Bemelmans testified that neither appellant nor Mr. Gutierrez could be excluded as possible matches, and the "evidence profile" was consistent with appellant and Mr. Gutierrez, or someone in their paternal line.⁶

Christina Tran, an expert serologist, tested several vaginal swabs taken from Ms. G. during the SAFE exam. The swabs tested positive for blood, one tested positive for amylase, an enzyme "found in high concentrations in saliva and in lower concentrations in other bodily fluids," and all tested negative for the presence of semen. Ms. Tran explainedthat amylase can be found in vaginal fluid, meaning the amylase could have been the victim's. Additionally, the presence of blood on the swabs would not be unusual if the victim was menstruating.⁷ Ms. Tran testified regarding other swabs she tested, all of which tested negative for semen.

On July 27, 2017, at the conclusion of the evidence and closing argument, the court rendered its verdict, stating as follows:

I have over the course of the last five or six days listened very carefully to the testimony of all the witnesses that had testified in this case. I have reflected upon their testimony over the course of the last few hours, and I have reviewed every witnesses['] credibility and taken into account all of their testimony. I have reviewed the State's exhibits that have been submitted, as well as each of the Defendants' exhibits that have been submitted. I have reviewed the law as it applies to attempted first and second-degree rape, assault in the second-degree, theft in this case under $1,000, and false imprisonment. I have taken into account, I listened very carefully and have considered and taken into account the exceptional closing arguments that were made in this case as well.

After taking everything into account, the Court finds [as] follows: I find that the State has proven beyond a reasonable doubt that as to Count 1, both Defendants are guilty of first-degree rape. I find that the evidence is beyond a reasonable doubt that the Defendants are guilty of second-degree assault, Count 3. Count 4, the State has failed to meet its burden of proof as to Count 4, and I find the Defendants not guilty of theft. Finally, as to Count 5, I find that the State has met its burden beyond a reasonable doubt and find both Defendants guilty of false imprisonment. I did not consider attempted second-degree rape as I believe finding of first-degree rape renders this finding of second-degree rape a nullity. Okay.

The court scheduled sentencing for September 1, 2017.

On July 3, 2017, appellant filed a Motion for Appropriate Relief, requesting that the Court dismiss Counts 1 and 2 on the ground that the verdicts the court rendered on those counts were for substantive rape rather than attempted rape. The court denied the motion, stating, in pertinent part, as follows:

Clearly when I announced the verdict and failed to say the word "Attempted," it was clearly a misstatement on my part and nothing more. It was my intent to find the Defendants guilt[y] . . . of attempted first-degree rape, and I was convinced beyond a reasonable doubt that they were guilty of attempted first degree rape. Quite frankly, this court never contemplated a charge of first-degree rape.

I have read [Johnson v. State, 427 Md. 356, 360 (2012),] and the other cases [including State v. Prue, 414 Md. 531 (2010),] and don't find them particularly persuasive in this case. I misspoke and strictly misspoke. . . .

* * *

The docket entry is clear that I found the Defendant[s] guilty of Count 1; attempted first-degree rape, guilty of Count 3; assault, and guilty of Count 5; false imprisonment. The motion is denied.

As indicated, the court sentenced...