Gutierrez v. State
| Docket Number | 896-2022 |
| Decision Date | 05 July 2023 |
| Parties | EVELYN GOMEZ GUTIERREZ v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
IN THE APPELLATE COURT OF MARYLAND[**]
Friedman, Ripken, Eyler, Deborah S. (Senior Judge, Specially Assigned), JJ.
A jury in the Circuit Court for Frederick County found Evelyn Gomez Gutierrez ("appellant") guilty of one count of second-degree rape and two counts of third-degree sexual offense. The court sentenced appellant to a total term of 30 years of incarceration, with all but 7 years suspended. Appellant noted this timely appeal. On appeal, appellant contends that the court erred by admitting the victim's testimony relating to uncharged sexual contact by the appellant.[1] For the reasons to follow, we shall affirm.
Appellant was arrested and charged with engaging in vaginal intercourse with her friend's minor son, "L."[2] At trial, L., who was born in February of 2007, testified that appellant had sexual intercourse with him on three different occasions in 2020. According to L., the first instance occurred in March of 2020 in the living room of his parents' home. On that occasion, L. was watching a movie alone when appellant, who was staying the night at L.'s home, sat next to and started kissing him. L. testified that appellant then had vaginal intercourse with him.
L testified that the second instance occurred in November of 2020, also at L.'s parents' home. On that occasion, L.'s mother was not at home and L. asked appellant if she wanted to have sex. The two went into the laundry room and appellant had vaginal intercourse with L.
L. testified that the third incident occurred at appellant's home after appellant picked L. up from school. On that occasion, the appellant drove L. to appellant's home and had vaginal intercourse with him in appellant's bedroom. L. could not recall exactly when the third incident occurred, although he testified that it "was still 2020."
In addition to L.'s testimony, the State presented testimony from several other witnesses. L.'s pediatrician testified that L. had come to her office in 2021 for a yearly physical. During that exam, L. reported that he had been sexually active with an adult. L.'s pediatrician later disclosed that information to Child Protective Services ("CPS").
A CPS investigator testified that she subsequently interviewed L. During that interview, which was recorded and played for the jury, L. stated that appellant had sexual intercourse with him three times in 2020. L. provided additional details regarding two of the incidents, stating that one of the incidents occurred at his parent's home while he was watching a movie and that another incident occurred in the home's laundry room.
A Frederick City Police Detective testified that she also interviewed L. and that, during that interview, L. reported that appellant had sexual intercourse with him on three occasions. According to the Detective, L. stated that the first incident occurred at L.'s home while he was watching a movie. The Detective testified that he eventually discussed the matter with L.'s mother, and she agreed to participate in a recorded phone conversation with appellant. During that conversation, appellant admitted to having inappropriate contact with L. on at least one occasion.
"Prior Bad Act" Evidence
As noted, appellant was charged with one count of second-degree rape and two counts of third-degree sexual offense. In the indictment, the State alleged that the second- degree rape offense (Count 1) had occurred on or about March 1, 2020 through March 31, 2020. For one of the counts of third-degree sexual offense (Count 2), the State alleged that the act had occurred on or about April 1, 2020 through April 30, 2021. For the other count of third-degree sexual offense (Count 3), the State alleged that the act had occurred on or about May 1, 2021 through May 31, 2021. For both counts of third-degree sexual offense, the State alleged that appellant had violated section 3-307 of the Criminal Law Article of the Maryland Code ("CL"). That statute prohibits "engag[ing] in sexual contact with another if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim[.]" CL § 3-307(a)(3). The statute defines "sexual contact" as "an intentional touching of the victim's or actor's genital, anal, or other intimate area for sexual arousal or gratification, or for the abuse of either party." CL § 3-301(e)(1). The statute also prohibits "engag[ing] in vaginal intercourse with another if the victim is 14 or 15 years old, and the person performing the act is at least 21 years old[.]" CL § 3-307(a)(5).
As discussed, L. testified at trial that appellant had engaged in three separate incidents of vaginal intercourse with him in 2020, when he was 13 years old. The first instance occurred in March of 2020 in the living room of his parents' home. The second instance occurred in November of 2020 in the laundry room of his parents' home. The third incident occurred sometime in 2020 at appellant's apartment.
Following that testimony, the State asked L. if there were any other incidents appellant had sexual contact with him. After L. responded in the affirmative, appellant objected and requested a bench conference. At that bench conference, the following colloquy ensued:
When L. resumed testifying, the State again asked if there were any other incidents of sexual contact. After appellant renewed his objection, L. testified that appellant used to pick him up from school and drive him home. L. testified that, during those trips, L. would put his hand on appellant's thigh and she would stroke his penis over his clothes. L. testified that it happened approximately 15 to 20 times. Although L. did not specify when those acts had occurred, he had previously testified that the incident of vaginal intercourse in March of 2020 was the "first time anything sexual" had occurred between him and appellant. L. later testified that he and appellant "stopped having sex" after the third instance of vaginal intercourse, which also occurred in 2020.
During cross-examination, appellant questioned L. about the delay between when the sexual acts took place and when he finally disclosed those incidents to his doctor and the police. Appellant asked L. if he had reported the incidents because appellant "wasn't paying attention" to him and he "wanted her in trouble." Appellant also questioned L. about certain discrepancies between his trial testimony and his reports to the police regarding the second and third instances of sexual intercourse.
Later, the trial court instructed the jury as to the elements of the charged crimes:
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