Gillie v. State

• Decision Date: 06 April 2023
• Docket Number: 446-2022
• Parties: REGINALD GILLIE v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

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REGINALD GILLIE v. STATE OF MARYLAND

No. 446-2022

Court of Special Appeals of Maryland^[*]

April 6, 2023

Circuit Court for Baltimore City Case No. 822076009

Arthur, Beachley, Woodward, Patrick L. (Senior Judge Specially Assigned), JJ.

OPINION ^[**]

BEACHLEY, J.

A jury in the Circuit Court for Baltimore City convicted Reginald Gillie, appellant, of indecent exposure and a fourth-degree sexual offense, and acquitted him of second-degree assault. He was sentenced to three years, all suspended, for indecent exposure and a consecutive but suspended one-year term for the sexual offense. He was placed on three years of probation, ordered to perform 40 hours of community service, and required to register as a sex offender.

In this timely appeal, we consider the scope of this common law crime, applying lessons from Wisneski v. State, 398 Md. 578 (2007), holding that a "public exposure" to a "casual observer" may occur in a private residence. Gillie presents four issues that we reorder and restate as follows:

1. Did the trial court abuse its discretion in admitting security camera video footage over Gillie's authentication objection?

2. Did the trial court abuse its discretion in overruling Gillie's objection to the State's closing argument because it infringed on his Fifth Amendment right not to testify and impermissibly shifted the burden of proof?

3. Did the trial court abuse its discretion in modifying the pattern jury instruction for indecent exposure by adding language defining who qualifies as a "casual observer," taken from Wisneski?

4. Is the evidence sufficient to establish indecent exposure, including the element of public exposure to a casual observer, based on Gillie's exposure of himself to the victim in her bedroom?

We conclude that the trial court did not err or abuse its discretion in admitting the security camera video footage, overruling the defense objection during closing argument, and instructing the jury on the elements of indecent exposure. Interpreting the concept of "casual observer" in the context of this common law crime, we hold that the evidence is sufficient to convict Gillie. Because Gillie does not challenge the sufficiency of the evidence supporting his fourth-degree sexual offense conviction, we will affirm both judgments.

BACKGROUND

The State presented testimony from the victim, J.L., and security camera video from her residence to prove that Gillie, a guest in her home, entered her bedroom when she was alone in bed then masturbated while "pulling [her] clothes down[.]" The incident occurred on October 17, 2021, after J.L., her husband, and a friend, B., returned to her house following a Halloween party. J.L.'s husband, who had been Gillie's friend for 13 or 14 years, invited Gillie to the party "because it was more girls there than boys." After J.L., her husband, and B. returned to J.L.'s house around 12:30 or 12:45 a.m., Gillie arrived approximately 30 minutes later.

Shortly after Gillie arrived, everyone fell asleep on the sofa. J.L. testified that Gillie woke her around 4:45 a.m., saying "he was going to make sure [she] got upstairs first and then he would come back down and wake [her] husband up to come upstairs." When she went upstairs, Gillie followed behind her, "made sure [she] got in the room" and was "okay," then left. "And then that's when the back and forth started."

J.L. testified that for the next "one and a half to two hours or so[,]" Gillie "was in and out of [her] bedroom[.]" Although J.L. was aware of Gillie coming in "two or three, at most, four" times, her home security camera system recorded video footage of the upstairs hallway, showing Gillie entering her room "nine or 10 times[.]" Over Gillie's authentication objection, video footage from the camera was admitted into evidence.

According to J.L., she kept telling Gillie "to go and get [her] husband and he ke[pt] telling [her] he's trying to wake him up[,]" but he was "really not" doing so. Instead, he was "just coming back into the bedroom."

During an encounter corresponding to video footage showing Gillie enter her bedroom at 4:54 a.m. and leave at 5:07 a.m., J.L. recounted that Gillie

told me that he wanted to spurt before he went home, I told him he had a girlfriend at home for that, he said she doesn't please him like he needs to be pleased. He stated that he needs it seven days a week and she's not satisfying him. So I repeated to him that he was not going to do that in my house and once that conversation-we was like smoking a little Hookah back and forth during that conversation and then he left.

At the time, J.L. testified, she misunderstood Gillie, believing that he was expressing an interest in "reliev[ing] himself sexually" with her friend B. "because of past history with him wanting to have sex with my other friend[.]" So after talking to Gillie, J.L. texted B., who was still downstairs on the sofa, telling her "that he likes her."

After other trips back upstairs to J.L.'s bedroom, Gillie returned at 6:44 a.m., as shown on the security camera footage. J.L. testified that when he

came back in, he called my name, I said yeah, and then during the time, he was masturbating and he wanted me to pinky promise I wouldn't tell anyone, we could keep it between him and I, we could be best friends afterwards. He was pulling my clothes down telling me [he] only needs two minutes. He said that he needs some napkins so that he doesn't make a mess on my sheets.

According to J.L., Gillie "[g]rabbed" the "waistband of [her] pants and [her] underwear." When he succeeded in pulling down her underwear, she "pulled them back up, he pulled them back down, [she] pulled them back up and [then] got up and . . . left out the room." During this part of the encounter, he "did touch [her] rear end . . . when [her] clothes were down." According to J.L., "[o]nce he pulled my clothes, then we was playing like tug-o-war with my clothes. That's when I got up and I left out the room[.]"

Making Gillie go first because she "wasn't comfortable with him behind" her, J.L. went downstairs. J.L. woke her husband in the living room and proceeded "to bring him upstairs." She turned off the camera system "because of the notifications" on her phone.

When asked why she did not try to wake her husband earlier, J.L. testified, "I knew not to call my husband, my husband was passed out asleep and there was no waking him up for a couple of hours." But once Gillie "did physically touch me, that's when I was like this is too much, I'm going to get up and I'm going to go downstairs, so that's what I did."

Around 7 a.m., J.L. left with B. to go pick up her children from her parents. Although she had told Gillie "that he needed to leave," when she returned around 7:40 a.m., he was still in her house. He followed her around as she walked through her living room and kitchen, telling J.L. that "he still needs just two minutes." J.L. "had to push him out of the actual house."

At 9 a.m., J.L. and her eight-year-old daughter had "non-refundable hair appointments," for which she had already paid "hundreds of dollars[.]" During the hours they were at that appointment, J.L. texted her husband about the incident around 11 a.m., and he encouraged her to call the police. She did so after they "returned back to [her] home" around 7:30 p.m. Defense counsel challenged J.L.'s credibility, eliciting her testimony that she knew Gillie for more than ten years and that he visited their house more frequently in 2021, but that he never "made any advances" toward her. Gillie did not call any witnesses, but to impeach J.L., he presented text messages and body-worn camera footage showing portions of J.L.'s statement to police. Although J.L. told police she was not drinking, she admitted that when she texted B. at 5:45 a.m. she was very drunk. J.L. nevertheless insisted that "there was no way [she] was drunk" by the time she left the house "an hour and maybe 20 minutes after that picking [her] children up[.]"

On re-direct and re-cross, J.L. clarified the timeline of events in reference to the time-stamped security camera footage showing Gillie coming into her room nine or ten times. J.L. explained that the first time Gillie brought up "squirting" was "[w]hen he came into the room at 5:07[.]" After smoking and having "the conversation about his girlfriend," Gillie left. J.L. "rolled over to go back to sleep[,]" so she did not "know exactly how many times he was in and out of the bedroom" before returning when "the sun was coming up."

Video shows Gillie returned to her room a sixth time around 6:07 a.m. According to J.L., after Gillie told her that he did not "want to mess up [her] sheets[,]" he returned another time after "grabbing a tissue[.]"

J.L. testified that when Gillie returned the final time "well into the 6:00 hour," she was "laying on [her] bed[.]" By the time she realized he was there and "turned around," his penis "was already out." He was "masturbating" with his right hand while "pulling . . . down" her clothes and underwear, and grabbing her "rear end," with his left hand.

Defense counsel sought to impeach J.L. by suggesting she fabricated that accusation because she worried that her husband, whom she feared based on past incidents of violence, would talk to Gillie and find out either that "she was coming onto" Gillie or that "it was consensual." Defense counsel elicited that before marrying her husband J.L. had twice filed physical assault charges against him; that their marriage was not "perfect"; and that by the time she talked to police that night, she knew Gillie had discussed the incident with her husband before she told him about it. Although J.L. admitted that she waited hours before reporting the incident to...