Gross v. State

• Docket Number: 32, Sept. Term, 2021
• Decision Date: 26 August 2022
• Citation: 481 Md. 233,281 A.3d 852
• Parties: Daniel Jay GROSS v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

481 Md. 233

281 A.3d 852

Daniel Jay GROSS

v.STATE of Maryland

No. 32, Sept. Term, 2021

Court of Appeals of Maryland.

August 26, 2022

Argued by Justin Eisele (Mirriam Z. Seddiq, Seddiq Law Firm, Rockville, MD), on brief, for Petitioner/Cross-Respondent.

Argued by Karinna M. Rossi, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Annapolis, MD), on brief, for Respondent/Cross-Petitioner.

Argued before:^* Getty, C.J., *McDonald, Watts, Hotten, Booth, Biran, Gould, JJ.

Biran, J.

In 1976, this Court established the standard for harmless error review in Maryland criminal appeals, holding that, "unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed harmless and a reversal is mandated." Dorsey v. State , 276 Md. 638, 659, 350 A.2d 665 (1976). This standard, so far, has withstood the test of time. The Petitioner in this case, Daniel Jay Gross, asks us to reassess the standard for harmless error review, arguing that we must make the State's burden to establish harmless error more onerous in order to avoid appellate courts usurping the role of the jury as the trier of fact.

In April 2019, in the Circuit Court for Montgomery County, a jury convicted Petitioner of two counts of second-degree sexual offense and one count of sexual abuse of a minor by a household or family member. The victim was Petitioner's adopted daughter. At trial, the victim testified that, when she was in kindergarten and first grade, Petitioner made her perform oral sex on him on multiple occasions. In addition, the victim's biological grandmother testified at trial about the victim's initial disclosure of the abuse to her on June 27, 2015.

The State also introduced a video recording of an interview the victim gave to a social worker on June 30, 2015, in which the victim reported the sexual abuse by Petitioner. Further, the State introduced the testimony of a child abuse pediatrician, who provided the jury with the account of the abuse that the victim gave her on July 8, 2015. Before us, Petitioner does not challenge the admission of the victim's account of abuse through the victim's live testimony and these other sources.

However, there was a fifth source of evidence introduced at trial through which the jury heard the victim's allegations of sexual abuse. Over defense objection, the State introduced a video recording of a conversation the victim had with her biological grandmother on June 27, 2015, immediately after she first disclosed the abuse to her grandmother. The victim repeated her allegations of abuse in that recorded conversation. The recording showed the victim crying throughout the conversation with her grandmother, as she begged her grandmother not to put Petitioner in jail. The trial court ruled that the video recording containing the victim's out-of-court statement to her grandmother was admissible as a prior consistent statement.

The Court of Special Appeals held that it was error to admit the video recording of the victim's disclosure to her grandmother, but concluded that the error was harmless beyond a reasonable doubt because the video evidence was cumulative of other evidence through which the jury heard the victim's account of sexual abuse. We agree. As discussed below, we reaffirm that the standard for harmless error analysis in Maryland is whether the reviewing court is convinced, beyond a reasonable doubt, that the error in no way influenced the jury's verdict. We also reaffirm this Court's longstanding approach of considering the cumulative nature of an erroneously admitted piece of evidence when conducting harmless error analysis. After reviewing the complete trial record, we are convinced that the admission of the challenged video was harmless beyond a reasonable doubt. Accordingly, we affirm the judgment of the Court of Special Appeals.

IBackground

A. A.M.’s Adoption and Subsequent Accusations of Abuse

J.M. gave birth to her daughter A.M.¹ in October 2007, when J.M. was 18 years old. J.M. is developmentally disabled. For this reason, J.M.’s mother, C.M., was A.M.’s primary caregiver for approximately the first 18 months of her life. Due to personal difficulties that C.M. was experiencing in approximately 2009, A.M. was placed in foster care at that time. Ultimately, J.M.’s parental rights were terminated, and A.M. was adopted by Petitioner and his wife, Emma Silvia Gross ("Ms. Gross").

A.M. was two years old when she began living with Petitioner, Ms. Gross, and their two minor sons. During the winter of A.M.’s first grade school year, she told a playmate that her father was "ticklish in the nuts." The friend's mother told Ms. Gross what A.M. had said. According to A.M., when Ms. Gross asked her about this statement, she told Ms. Gross (using children's terminology) that she had performed oral sex on Petitioner. After speaking with A.M., Ms. Gross had a conversation with A.M. and Petitioner during which Petitioner denied that he had engaged in oral sex with A.M. According to A.M., she cried and "said he did." Petitioner's denial made A.M. feel "sad" because "he wasn't telling the truth." After this discussion, an "open door policy" was instituted in the Gross household and Petitioner no longer spent time alone with A.M.

Before this open-door policy was put into effect, A.M. had supervised visits with her biological mother and grandmother (J.M. and C.M.) once or twice a year, and always in a public place. After implementing the open-door policy, Ms. Gross and Petitioner began to allow A.M. to spend more time with J.M. and C.M., including multiple unsupervised weekend stays at C.M.’s home in the spring of 2015. During this time, C.M. consulted an attorney about potentially adopting A.M., with the assistance of Ms. Gross.

On June 27, 2015, while A.M. was spending the weekend at C.M.’s home (where J.M. also lived), A.M. disclosed Petitioner's alleged sexual abuse to C.M. After A.M. told C.M. that she had performed oral sex on Petitioner, C.M. immediately called J.M. from her room and had J.M. record two videos on J.M.’s tablet device in which A.M. repeated her allegations to C.M. In addition to stating that Petitioner made her perform fellatio on him, A.M. said in one of the videos that Petitioner licked "[her] legs, [her] private."

On June 30, 2015, C.M. reported A.M.’s allegations to police.

B. Investigation and Charges

Later in the evening on June 30, 2015, Britney Colandreo, a social worker employed by Montgomery County Social Services, interviewed A.M. The interview was video recorded. During the interview, among other things, A.M. told Ms. Colandreo that she had sucked Petitioner's "nuts" when he was putting her to bed in her bedroom. Ms. Colandreo did not ask A.M. if Petitioner ever performed cunnilingus on her, nor did A.M. say that Petitioner engaged in that conduct.

On July 8, 2015, A.M. met with Dr. Evelyn Shukat, a child abuse pediatrician and the medical director of The Learning Tree Advocacy Center. A.M. told Dr. Shukat that she performed oral sex on Petitioner, and that Petitioner also performed cunnilingus on her.

Police subsequently obtained a warrant to search Petitioner's home. They discovered a stain on the carpet next to A.M.’s bed that they believed might contain bodily fluid. Subsequent testing confirmed the presence of seminal fluid and spermatozoa in the stain, and revealed that the source of the semen had a DNA profile that was consistent with Petitioner's DNA profile.

Petitioner was subsequently charged with one count of sexual abuse of a minor by a household or family member, two counts of second-degree sexual offense (fellatio), and one count of second-degree sexual offense (cunnilingus).

C. Trial

Shortly before the start of his trial, Petitioner filed a motion in limine to preclude the State from introducing the video evidence containing A.M.’s statements to C.M. and J.M. (the "June video"² ). Defense counsel asserted that the June video was neither admissible as a prior consistent statement nor as a prompt complaint of sexual abuse. The parties and the trial court briefly discussed this motion prior to the start of the evidence. The trial court did not rule on the motion at that time.

The State's first witness was A.M., who was 11 years old at the time of trial. A.M. testified that Petitioner would "ask me to put my mouth on his man part ... and suck it"; that "white goo" would come out of Petitioner's "man part"; and that these incidents occurred while she was in her bed following bedtime prayers. A.M. also testified that Petitioner would reward these acts by letting A.M. stay up late to play with her toys. According to A.M., the abuse occurred throughout her kindergarten school year and into the winter of first grade. It stopped after she told Ms. Gross that Petitioner "was coming in my room and making me suck his man part." Notably, when asked whether Petitioner "ever [did] anything with his mouth on your body," A.M. answered "No."

The State next called Ms. Gross as a witness. She testified that she heard from a neighbor that A.M. had told the neighbor's daughter that Petitioner was "ticklish in the nuts." According to Ms. Gross, when she asked A.M. about this statement, A.M. said she was kidding. Later, Ms. Gross had a conversation with Petitioner and A.M. in which Petitioner denied having engaged in any sexual acts with A.M. Ms. Gross testified about the "open door policy" that was instituted in the home going forward, and stated that Petitioner subsequently did not spend time alone with A.M. Ms. Gross also acknowledged that, following this incident, she allowed C.M. and J.M. for the first time to have overnight unsupervised visits with A.M., and that she helped C.M. find a lawyer who could advise C.M. regarding possibly adopting A.M.

C.M. then testified. She told the jury that on June 27, 2015, while A.M. was spending the weekend at her home,...