Collins Spencer v. State, 030719 MDSCA, 153-2018

Docket Nº:153-2018
Opinion Judge:HARRELL, J.
Party Name:DEREK ANTOINE COLLINS SPENCER v. STATE OF MARYLAND
Judge Panel:Nazarian, Arthur, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ.
Case Date:March 07, 2019
Court:Court of Special Appeals of Maryland
 
FREE EXCERPT

DEREK ANTOINE COLLINS SPENCER

v.

STATE OF MARYLAND

No. 153-2018

Court of Special Appeals of Maryland

March 7, 2019

Circuit Court for Montgomery County Case No. 131359C

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

OPINION [*]

HARRELL, J.

Derek Antoine Collins Spencer ("Spencer") was charged, in the Circuit Court for Montgomery County, with: 1) third degree sexual offense; 2) fourth degree sexual offense; and, 3) second degree assault. A jury, after a three day trial in November 2017, returned guilty verdicts on all counts. The court sentenced Spencer to ten years, with all but seven years suspended, for the third degree sex offense, and one year concurrent on each of the other convictions. This timely appeal followed.

QUESTIONS PRESENTED

Spencer presents the following questions for our consideration (we rephrase the first question slightly):[1]

1. Did the circuit court abuse its discretion in admitting [the victim's] statement to her mother?

2. Did the circuit court abuse its discretion in refusing to propound Appellant's missing evidence instruction?

3. Must the sentences for fourth degree sexual offense and second degree assault merge into the sentence for third degree sexual offense?

For reasons to be explained, we answer the first two questions in the negative. We answer the third question in the affirmative.

FACTUAL AND PROCEDUAL BACKGROUND

According to her testimony, thirteen-year-old S.T. spent the night of 8 August 2016 at her cousin's (Erin's) apartment in Rockville with Erin and another cousin (DeShawn).2 Appellant, who was Erin's boyfriend at the time, was at the apartment that night as well. According to S.T., Spencer, who was drinking beer, appeared inebriated.

Around 11:00 p.m., S.T. left the living room (where she had been watching a movie) and went to a bedroom that she was to share with DeShawn. S.T. changed into sweatpants and a sweatshirt as bed clothes. She and DeShawn went to sleep in the same bed.

S.T., who was sleeping on her stomach, woke around 4:00 a.m. to the sensation of a lick "[l]ike in between [her] legs," in the area "in between like where [her] vagina is and [her] butt." She noted that her sweatpants were down to her knees. She turned over and saw Spencer slide under the bed. S.T., in an attempt not to startle Spencer into fleeing, texted DeShawn (in the bed next to her) to wake her up.3 DeShawn did not respond, so S.T. tapped her until she woke. S.T. encouraged DeShawn to look under the bed, where she saw Spencer. Both girls stepped over Spencer, who did not fit completely under the bed, and alerted Erin of Spencer's presence in their sleeping quarters.

Erin confronted Spencer, yelling at him and asking why he was in the room where the girls were sleeping. As she did this, Spencer "was just laying [sic] there like he was asleep." Erin ejected ultimately Spencer from the apartment around 5:00 a.m.

At approximately 6:00 a.m., S.T. communicated to a friend what happened in the bedroom. Erin counseled S.T. and her friend that they should not tell anyone what happened because Erin's baby might be taken away from her by the authorities if the events of that night became publicized. She promised S.T. that she would "handle it."

S.T. did not tell her mother, Kym, about the incident until "a couple days after S.T.'s birthday," which was November 6 (approximately three months after the incident). Kym (who lived with S.T. in Prince George's County) called the police and reported the incident promptly upon learning of it. A Prince George's County police officer responded initially, but the matter was referred to Montgomery County law enforcement because of where the incident occurred.

Trial began on 6 November 2017. At trial, in addition to S.T.'s testimony, her fifteen-year-old friend (to whom she confided promptly about the August 8 incident of the previous year) testified on behalf of the prosecution. She stated that S.T. sounded "scared or nervous" on the video chat line call on that morning. She testified additionally that S.T. told her that Spencer had licked her "on the butt" and that her butt was wet as a result.

Kym testified also for the prosecution. She stated that she noticed a change in S.T.'s demeanor when she picked her up after S.T. spent the time at Erin's apartment. When she questioned S.T. regarding those changes, S.T. responded initially by crying and stating "Erin told me not to tell you." S.T. disclosed eventually that "she was awakened by a feeling, what she thought was a wet tongue on her, going up her behind." Kym testified additionally that when she called Erin regarding the incident, Erin at first denied having any knowledge of the incident. Later in the conversation, Erin claimed that she "took care of that" by "sp[eaking] to authorities about what happened."

Erin testified in the defense case-in-chief. She claimed that Spencer left her apartment initially between 1:30 a.m. and 2:00 a.m. on the night in question. Spencer had his own key to the dwelling and returned while the occupants were sleeping. She claimed that she found Spencer asleep on the floor in DeShawn's and S.T.'s room and kicked him "at least 20 times" in an effort to wake him up. According to Erin, S.T. never told her that she had been touched in any manner by Spencer.

The defense called also DeShawn as a witness. She testified, somewhat consistently with S.T.'s account, that S.T. woke her up to tell her that Spencer was on the floor under their bed. Upon seeing Spencer under the bed, DeShawn went to notify Erin. According to DeShawn, the next day, S.T. told her "in a jokingly manner" that Spencer had licked her. She opined, however, that sometimes S.T. would tell the truth and sometimes she wouldn't.

I.

The circuit court did not err in admitting Kym's testimony regarding S.T.'s statement to her.

Kym testified at trial regarding her conversation with S.T. about the event where Spencer licked her. Spencer argues that S.T.'s statement to Kym regarding the incident constituted inadmissible hearsay. [Kym]: So...

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