Cousar v. State
| Decision Date | 28 April 2011 |
| Docket Number | No. 2683,2009.,Sept. Term,2683 |
| Citation | 198 Md.App. 486,18 A.3d 130 |
| Parties | Kelvin COUSARv.STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Renee Hutchins (University MD School of Law, on the brief), Baltimore, MD, for appellant.Robert Taylor, Jr. (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.Panel: MEREDITH, WATTS, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.WATTS, J.
After a trial held from November 18, 2009 through November 20, 2009, a jury in the Circuit Court for Charles County convicted Kelvin Cousar, appellant, of unnatural or perverted sexual practices, third degree sexual offense, reckless endangerment, and wearing, carrying, or transporting a handgun. See Md.Code Ann., Crim. Law (“C.L.”) § 3–322 (); C.L. § 3–307(a)(1) (); C.L. § 3–204(a)(1) (reckless endangerment); and C.L. § 4–203 ().1 Subsequently, on January 25, 2010, the court sentenced appellant to three years of imprisonment for wearing, carrying, or transporting a handgun, a consecutive five years for reckless endangerment, and a consecutive ten years for third degree sex offense, for a total of eighteen years of imprisonment.2
On appeal, appellant presents two issues, which we have rephrased as follows: 3
I. Whether the trial court erred in admitting, over appellant's objection, the testimony of an alleged rape victim from an unrelated pending case?
II. Whether the trial court erred in instructing the jury as to reckless endangerment by allegedly omitting the elements of the offense?
We find no error and affirm the judgments of conviction, for the reasons set forth below.
The acts for which appellant was convicted occurred on April 12, 2009, during a meeting between appellant and a Ms. Stahl (“Stahl”) at the Master Suites hotel in Waldorf, Maryland. Stahl offered erotic services on the online advertising site known as Craigslist. Appellant made inquiries for sexual services through Craigslist, and identified Stahl as someone he wanted to contact. Appellant and Stahl agreed, in advance, via telephone, to meet at the hotel. Stahl arrived first at the hotel and invited appellant into the room. According to Stahl's testimony, once inside, she completed the agreed-upon activity of “stripping and grinding” in exchange for payment of $200.00. Appellant then produced a gun and forced Stahl to undress and lay on the bed while he straddled her and defecated in her mouth. Appellant also forced Stahl to engage in oral and anal sex while holding the gun to her head. Stahl testified, at trial, that she did not consent to being defecated on or to the oral and anal sexual activity.
Detective Jack Austin, Charles County Sheriff's Department, a witness for the State, testified that, on May 1, 2009, he arrested appellant. Austin testified appellant told him the sexual activity with Stahl was consensual, and that appellant acknowledged defecating on Stahl, but said the defecating was “accidental.”
The State introduced the testimony of Ms. Swanson (“Swanson”). Swanson is the alleged victim in an unrelated case that was pending against appellant in the Circuit Court for Prince George's County. Swanson testified that she met appellant at her apartment on February 20, 2009, less than two months prior to appellant's encounter with Stahl. Swanson testified that her meeting was also generated by Craigslist, where she advertised erotic services. Swanson testified that, while inside her apartment, after a disagreement about payment, appellant produced a gun, told Swanson to undress and instructed her to perform anilingus.4 Swanson testified appellant defecated in her mouth while she was performing anilingus. Swanson testified that appellant forced her, with the results of the defecation still in her mouth, to perform oral sex. Swanson testified that she did not consent to being defecated upon.
Prior to Swanson taking the stand, appellant moved in limine to exclude Swanson's testimony, arguing that the testimony constituted inadmissible propensity evidence. Appellant argued the prejudicial effect of Swanson's testimony outweighed the probative value. The circuit court determined Swanson's testimony to be admissible to show intent 5 or under the absence of mistake exception of Maryland Rule 5–404(b), as argued by the State.
Appellant testified that the sexual activity with Stahl was consensual, and that the defecation was not for sexual gratification.
At the conclusion of all of the evidence in the case, and prior to closing argument, the court instructed the jury. As to reckless endangerment, the court instructed: “A person may not recklessly engage in conduct that creates a substantial risk of death or serious physical injury to another.” Prior to instructing the jury, the trial judge gave each attorney a copy of the jury instructions he intended to utilize, in order for the attorneys to “follow along” as the court instructed the jury. At the conclusion of giving the jury instructions, the trial judge asked both counsel, on three separate occasions, whether they were satisfied with the given instructions. Neither attorney made any exception or objection to the court's instruction as to reckless endangerment.
Appellant contends the circuit court erred in admitting Swanson's testimony that he defecated on her for three reasons: (1) Other crimes evidence is inadmissible to prove character of a person in order to show conduct in conformity therewith; (2) The testimony was used only to buttress the testimony of the complaining witness; and (3) Swanson's testimony was not relevant and was used to show criminal propensity.
The State acknowledges that evidence of a defendant having committed similar acts may not be introduced to prove a propensity to commit the acts in question, but asserts that, under Maryland Rule 5–404(b), such evidence may, however, be introduced to prove conduct other than propensity. The State points out that Maryland Rule 5–404(b) offers a non-exhaustive list of things that may be proven with evidence of prior acts, including “absence of mistake or accident,” and contends that such evidence was appropriately admitted, in this case, to refute appellant's claim of mistake or accident.
Maryland Rule 5–404(b) generally renders inadmissible evidence of other crimes, wrongs, or bad acts. Thompson v. State, 412 Md. 497, 521–22, 988 A.2d 1011 (2010). Rule 5–404(b), providing that evidence of other crimes, wrongs or bad acts is ordinarily inadmissible, “embodies the Maryland common law of evidence concerning other crimes, etc. which existed prior to adoption of the Rule.” Boyd v. State, 399 Md. 457, 482, 924 A.2d 1112 (2007) (citing Streater v. State, 352 Md. 800, 806, 724 A.2d 111 (1999); Merzbacher v. State, 346 Md. 391, 406, 697 A.2d 432 (1997)).
As Maryland Rule 5–404 explicitly recognizes, however, there are circumstances under which prior criminal or wrongful acts are admissible. Case law sets forth a three-pronged test for admissibility:
When a trial court is faced with the need to decide whether to admit evidence of another crime—that is, evidence that relates to an offense separate from that for which the defendant is presently on trial—it first determines whether the evidence fits within one or more of the [ Cross ] exceptions. That is a legal determination and does not involve any exercise of discretion. See Cross [ v. State ], 282 Md. [468,] at 474, 386 A.2d [757,] at 761 [ (1987) ]; Moore v. State, 73 Md.App. 36, 44, 533 A.2d 1, 5 (1987), cert. denied, 311 Md. 719, 537 A.2d 273 (1988).
If one or more of the exceptions applies, the next step is to decide whether the accused's involvement in the other crimes is established by clear and convincing evidence. Lodowski v. State, 302 Md. 691, 728, 490 A.2d 1228, 1247 (1985), defendant's petition for cert. denied, 475 U.S. 1086, 106 S.Ct. 1469, 89 L.Ed.2d 725, vacated, 475 U.S. 1078, 106 S.Ct. 1452, 89 L.Ed.2d 711, rev'd on other grounds, 307 Md. 233, 513 A.2d 299 (1986); Cross, 282 Md. at 478, 386 A.2d at 764. We will review this decision to determine whether the evidence was sufficient to support the trial judge's finding.
If this requirement is met, the trial court proceeds to the final step. The necessity for and probative value of the “other crimes” evidence is to be carefully weighed against any undue prejudice likely to result from its admission. Cross, 282 Md. at 474, 386 A.2d at 761 [citations omitted]. This segment of the analysis implicates the exercise of the trial court's discretion. Id.; Moore, 73 Md.App. at 44–45, 533 A.2d at 5.
State v. Faulkner, 314 Md. 630, 634–35, 552 A.2d 896 (1989).6
As a threshold matter, in determining whether to admit evidence under Maryland Rule 5–404(b), a court must evaluate whether evidence is introduced for some purpose other than to suggest that, because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial. Boyd, 399 Md. at 483, 924 A.2d 1112. The evidence must fit into one of the categories of special relevance. In this case, the State's argument and the circuit court's reason for admission of Swanson's testimony was that the evidence fit the category of “absence of mistake.” For the following reasons, we agree.
In Wynn v. State, 351 Md. 307, 718 A.2d 588 (1998), the Court of Appeals thoroughly examined the general admissibility of other crimes or bad acts evidence and specifically analyzed the “absence of mistake” exception. The Court, in Wynn, stated: “[Maryland Rule 5–404(b) ] means that evidence that the defendant committed other crimes or bad acts is not admissible unless it has special relevance—that it ‘is substantially relevant to some contested issue and is not offered simply to prove criminal character.’ ” Id. at 316, 718 A.2d 588 (quoting State v. Taylor, 347 Md. 363, 368, 701...
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