Degren v. State

• Decision Date: 14 January 1999
• Docket Number: No. 54,54
• Citation: 352 Md. 400,722 A.2d 887
• Parties: Sharon DEGREN v. STATE of Maryland.
• Court: Maryland Court of Appeals

722 A.2d 887

352 Md. 400

Sharon DEGREN v. STATE of Maryland.

No. 54, Sept. Term, 1998.

Court of Appeals of Maryland.

January 14, 1999.

John L. Kopolow, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Petitioner.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen.; David J. Taube, Staff Atty., on brief), Baltimore, for Respondent.

Argued before BELL, C.J., RODOWSKY, CHASANOW, RAKER, WILNER, CATHELL, and RAYMOND G. THIEME, Jr. (specially assigned), JJ.

CATHELL, Judge.

In this case we must determine whether a person with responsibility for a minor child who fails to prevent that child from being raped while the child is in her presence may be convicted of sexual abuse under the child abuse statute. In addition, we must ascertain whether the trial court erred in denying motions with respect to comments made by the State's Attorney during closing arguments that implied the defendant, by virtue of her status as a criminal defendant, had a motive to lie. We shall affirm.

I. Procedural History

Sharon Degren,¹ petitioner, was charged in the Circuit Court for Charles County with four counts of child abuse, four counts of second degree rape, three counts of second degree sexual offense, one count of third degree sexual offense, and two counts of conspiracy for her involvement in the molestation of victim Jennifer B. Petitioner moved for and was granted a judgment of acquittal on three counts of second degree rape. Petitioner ultimately was found guilty by a jury of four counts of child abuse and not guilty of three counts of second degree sexual offense. The jury could not agree on a verdict as to one count of second degree rape, one count of third degree sexual offense, and one count of conspiracy.² Petitioner was sentenced to four concurrent ten-year sentences. Five years of each sentence were suspended in favor of five years of probation.

Petitioner appealed to the Court of Special Appeals. In an unpublished opinion, that court vacated one condition of petitioner's probation, but affirmed the trial court in all other respects. Degren v. State, 119 Md. App. 814 [No. 1135, 1997 Term, slip op., filed Feb. 25, 1998]. Petitioner filed a Petition for Writ of Certiorari in this Court on March 24, 1998. She presents the following questions for our review:

1. Did the lower courts err in holding that an adult with responsibility for supervision of a child may be guilty of sexual child abuse if she fails to prevent another person's sexual molestation or exploitation of the child?

2. Did the trial judge err by allowing the prosecutor to tell the jury in closing argument that the "number one reason" for not believing Petitioner's testimony is that "nobody in this country has more reason to lie than a defendant in a criminal trial"?

We granted the petition in order to resolve the important issues raised by this appeal.

II. Facts

In the summer of 1996, Jennifer was twelve years old. She had known petitioner and her husband, Nick Degren, for about three years as the Degrens were friends of Jennifer's mother. At some point, Jennifer's mother arranged for Jennifer to stay with the Degrens for about a week in June and for two weeks in August of 1996. Jennifer did not object to this arrangement.

We shall set forth a summary of the evidence bearing on the four incidents of alleged child abuse verbatim as recited by petitioner in her brief, which is almost identical to the facts recited by the Court of Special Appeals in its opinion below:³

Late June, 1996:

Jennifer testified that one night she walked into Petitioner and Nick's bedroom and fell asleep on their bed. When she awoke, Nick was having sexual intercourse with her. Petitioner was sitting on the corner of the bed watching television and watching them. Nick asked Petitioner "if she felt right with him having sexual intercourse with me." Petitioner said "[s]he really didn't care." Nick ceased when Jennifer told him to get off of her. She left the room, then returned and saw Petitioner and Nick having sexual intercourse. On cross-examination, when confronted with a statement she gave to Detective Goldsmith saying she agreed to having sex with Nick, Jennifer denied that she had told the detective that. When shown the same statement, Goldsmith confirmed that Jennifer did say she agreed to have sex with Nick on that occasion.

Petitioner, in her testimony, stated that nothing happened in her apartment in late June, 1996, because she did not move into that apartment until July.

August 10, 1996:

Jennifer testified that on August 10, 1996, on her second visit with the Degrens, she again fell asleep in their bed and again woke up to Nick having vaginal intercourse with her while Petitioner sat on a corner of the bed and watched them. After Nick and Jennifer had sex, Petitioner "ate me out[,]" by which Jennifer meant that Petitioner's mouth was touching her vagina. Jennifer acknowledged on cross-examination that her statement to Detective Goldsmith does not mention Petitioner ever putting her mouth on Jennifer's vagina. In fact, the first person she told about that act was the prosecutor, in January, 1997. She also denied telling the detective that Petitioner was aware of the rape but did not participate even though that remark is in her statement. Goldsmith confirmed that Jennifer never told him about an act of oral sex performed on her by Petitioner.

Petitioner testified that on August 10 she was lying in bed with Nick watching television when Jennifer came in and said she wanted to have sex with him and couldn't wait another day. She did not intervene because Nick, at times, was abusive and she "was afraid that he would hit [her]." Petitioner stated that the alleged act of oral sex never happened.

August 14, 1996:

According to Jennifer, on this occasion Richard Dobsha ("Rick") was at the apartment and remained there after Nick went to work. Jennifer went to sleep on Nick and Petitioner's bed because their daughter was asleep in Jennifer's bed. When she woke up, Rick and Petitioner were engaged in sex on the bed. Jennifer went back to sleep only to be awakened by Rick having intercourse with her. While this was taking place, Petitioner "was talking sexual." After Rick finished having sex with Jennifer, Petitioner "ate me out again." However, she told Detective Goldsmith that she came into the room while Rick and Petitioner were engaged in sex; that she removed her clothing and lay down in bed next to them; that Rick moved over and had sex with her, ejaculating in her vagina, while Petitioner "had sex talk with him;" that Petitioner then experienced stomach pains and called her father to take her to the hospital. In her testimony Jennifer denied telling Goldsmith that she entered the bedroom, took off her clothes and got in bed with Rick and Petitioner.

Rick testified that on August 14 Jennifer told him she wanted to have sex with him. She sat on his lap, but he pushed her away. Jennifer rubbed his legs and his private parts and then removed her clothes. Rick tried to have sex with Petitioner but could not sustain an erection. She performed oral sex on Jennifer, after which the women reversed roles. While that was taking place, Rick tried to insert his penis in Jennifer's vagina but was not entirely successful. He admitted on cross-examination that in his statement he said nothing about Petitioner performing oral sex on Jennifer.

According to Petitioner, Jennifer initially wanted sex with Nick. After he left for work, she jumped onto Rick's lap and said, "take me, here I am, ... and I need to have sex." Rick pushed her away and said he wanted to have sex with Petitioner. However, Petitioner could not have sex due to a ruptured cyst. After lying in a hot tub for about an hour, she came into the bedroom and saw Jennifer and Rick having intercourse. Rick then tried to persuade Jennifer to have sex with Petitioner. At first unwilling, Jennifer eventually tried but Petitioner refused to participate. Petitioner denied having oral sex with Jennifer.

August 15, 1996:

Petitioner, Nick and Jennifer were again in the bedroom when, according to Jennifer, Petitioner inserted a vibrator in her vagina. Thereafter, Petitioner put the vibrator in Jennifer while Jennifer and Nick were engaged in intercourse. She acknowledged on cross-examination that she never told Detective Goldsmith that Petitioner used a vibrator on her and that her first mention of it was to the prosecutor during their third discussion of the case.

Petitioner testified that she returned from the hospital on the morning of August 15 feeling sleepy from medication she had been given. She lay down. Jennifer told Nick she was ready for sex. Petitioner left the room as they were having intercourse. She denied using a vibrator on Jennifer and denied even owning one.

Lori Owens, a friend of Petitioner, testified that in July or August of 1996 Jennifer, apparently unaware that Ms. Owens knew the Degrens, began telling her that she was staying with a "guy named Nick... and his wife Sharon," that she had had sex with Nick quite a bit, and that he loved her and planned to leave his wife for her. When Ms. Owens revealed that she knew the Degrens, Jennifer "shut up." [Footnote omitted.] [Alterations in original.]

III. Petitioner's Failure to Prevent the Rape of Jennifer

Under Maryland Code (1957, 1996 Repl. Vol.), Article 27, section 35C(b)(1),⁴ "[a] parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a child ... who causes abuse to the child is guilty of a felony and on conviction is subject to imprisonment in the penitentiary for not more than 15 years."⁵ Abuse includes both "[t]he sustaining of physical injury by a child as a result of cruel or inhumane treatment or as a result of a malicious act ... under circumstances that indicate that the child's health or welfare is harmed or threatened thereby," § 35C(a)(2...