Harmony v. State
| Decision Date | 01 September 1990 |
| Docket Number | No. 1617,1617 |
| Citation | 594 A.2d 1182,88 Md.App. 306 |
| Parties | Ebert Henry HARMONY, Sr. v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Mary O'Malley Lunden, Staff Atty. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Sandra A. O'Connor, State's Atty. for Baltimore County, Towson, on the brief), for appellee.
Argued before MOYLAN, WENNER and MOTZ, JJ.
Appellant, Ebert H. Harmony Sr., was convicted by a jury in the Circuit Court for Baltimore County (Smith, J.) of third degree sexual offense, fourth degree sexual offense, and battery. He was sentenced to three years imprisonment, suspended, with three years supervised probation, on the third degree sexual offense conviction and one year Appellant appeals claiming that the trial court erred in the following four respects:
imprisonment, suspended, with one year supervised probation to run concurrently, on the fourth degree sexual offense conviction. The battery conviction was merged with the fourth degree sexual offense conviction
1. Refusing to dismiss the criminal information because of its alleged vagueness and uncertainty.
2. Refusing to dismiss the misdemeanor counts which were assertedly barred by the statute of limitations.
3. Permitting hearsay testimony concerning statements the victim made to a relative several hours after the incident.
4. Refusing to permit the defense to explore issues of potential bias of the victim toward the appellant.
Because we do not find any error, we affirm.
The facts underlying this case came to light in July, 1988. Appellant went to his fourteen year old niece's home, at her request, to install a telephone which she had received as a present. When the young girl and appellant were alone in the basement, he made a comment about how much she had grown, touched her breasts, and wrapped a cord around her. She became very upset, ran upstairs and locked herself in the bathroom. When her father checked on her sometime later, she told him that "Uncle Ebert was abusing me." The young girl later telephoned her sister. The sister testified, over objection, that at some point during the evening in question, the girl had called, crying hysterically, and stating "Uncle Ebert ... grabbed me ... and this is not the first time, this has happened before."
The girl's parents did not report the incident, though they did send her to a private counselor after she began to experience nightmares because of it. This counselor informed the Department of Social Services which turned the information over to the Youth Services Division of the Baltimore County police. The police investigated the incident The police filed a criminal information against the appellant on December 18, 1989, charging that he "did unlawfully cause abuse" upon a minor child, from "1980 through July of 1988." Appellant filed a motion to dismiss as well as a demand for a bill of particulars on January 5, 1990. The State responded with a bill of particulars on February 12, 1990 which stated that the alleged offenses:
by speaking to the young girl and her counselor. The girl told the police that there had been other incidents involving the appellant which occurred during previous summers when she would spend several days at appellant's home
were inflicted upon the victim between the ages of six (6) years and ten (10) years (1980-1984) on numerous occasions. The events occurred during the summer months, (June, July or August) while the Defendant and his wife had care and custody of the victim two or three days per week while her parents worked. The victim did her best after age ten (10) to stay away from the Defendant and therefore, no criminal acts occurred between 1985 to 1988. In July of 1988, another incident of third degree sexual offense, as well as lesser offenses of fourth degree sexual offense and assault and battery occurred.
After further investigation by the police disclosed that some offenses did occur between 1985 and 1988, the State filed a supplemental response to the bill of particulars which stated:
[f]rom 1985 through 1988, criminal acts did occur on a much less frequent basis than they did when the defendant and his wife babysat for the victim.... The events occurring between 1985 and 1988 occurred at several locations. These would include, the defendant's home, the victim's home, and the defendant's daughter's pool.
Prior to trial, appellant moved to dismiss the criminal information because of its alleged vagueness and uncertainty as to time. Relying on State v. Mulkey, 316 Md. 475, 560 A.2d 24 (1989), the trial court denied the motion to dismiss. Appellant claims this decision was contrary to both the Maryland Declaration of Rights and Maryland Rule 4-202. Accordingly, we examine both sets of requirements.
The Maryland Constitution provides that "every man hath a right to be informed of the accusation against him; to have a copy of the indictment ... to prepare for his defence." Art. 21, Md. Decl. of Rts. Appellant claims that the charging document at issue here was unconstitutional because it did not provide sufficient information as to the time and dates of the alleged offenses to enable him to "prepare for his defence."
In Mulkey, the Court of Appeals recently considered precisely this issue. It held that, in the context of a sex abuse case concerning a minor, when time is not an essential element of the offense, general allegations as to time are constitutionally sufficient if the actual date of the offense is unknown. 316 Md. at 484, 560 A.2d at 28. The Court explained that the "ability of a child to definitely state the date or dates of the offenses or to narrow the time frame of such occurrences may be seriously hampered by a lack of memory." Id. at 482, 560 A.2d at 27. Accord Bonds v. State, 51 Md.App. 102, 107, 442 A.2d 572, 575 (1982). Moreover, where the offense is of a continuing nature, it may simply be impossible for the State to provide specific dates in its charging document. Id., 316 Md. at 485, 560 A.2d at 28, citing, State v. Mancinone, 15 Conn.App. 251, 545 A.2d 1131, 1136, cert. denied, 209 Conn. 818, 551 A.2d 757 (1988), cert. denied, 489 U.S. 1017, 109 S.Ct. 1132, 103 L.Ed.2d 194 (1989).
Accordingly, we conclude that the information here, stating that the offenses occurred from 1980 to 1988, is constitutionally valid under the Maryland Declaration of Rights. 1 As in Mulkey, the charges here involve multiple sexual abuses of a continuing nature against a child-victim who was unable to specify exact dates or times of the various acts. Appellant was on notice well in advance of trial that the state intended to show a pattern of ongoing abuses, and thus was fully apprised of the continuing nature of the offenses, thus his ability to prepare a defense was not hampered. See Mulkey, 316 Md. at 489, 560 A.2d at 30; Eberhardt v. State, 257 Ga. 420, 359 S.E.2d 908, 909 (1987), cert. denied, 484 U.S. 1069, 108 S.Ct. 1036, 98 L.Ed.2d 999 (1988). Where the exact time and date of the crime alleged is impossible to establish, we will not allow a criminal defendant to "thwart justice" by demanding specific dates and times by raising an alibi defense. Bonds, 51 Md.App. at 107, 442 A.2d at 575. 2
Md.Rule 4-202 supplements the constitutional requirements discussed above and mandates that a charging document state "with reasonable particularity, the time and place the [charged] offense[s] occurred." To aid a trial court in its determination of whether the requirements of the rule are met in the context of a "sexual offense case involving a child victim," the Mulkey Court enunciated a nonexhaustive list of factors to be considered: "1) the nature of the offense; 2) the age and maturity of the child; 3) the victim's ability to recall specific dates; and, 4) the State's good faith efforts and ability to determine reasonable dates." 316 Md. at 488, 560 A.2d at 30.
Additionally, while a bill of particulars generally may not form any part of an information or be used to correct a defective charging document, Seidman v. State, 230 Md. 305, 312, 187 A.2d 109, 114 (1962), cert. denied, 374 U.S. 807, 83 S.Ct. 1696, 10 L.Ed.2d 1031 (1963); State v. Morton, 295 Md. 487, 492, 456 A.2d 909, 912 (1983), the Mulkey Court developed an exception to this rule. The Court held that in the limited context of a sexual offense involving a minor, the trial court should consider the information provided in a bill of particulars when determining whether the time of the offenses is stated with "reasonable particularity" in the charging document. 316 Md. at 490-91, 560 A.2d at 31.
Here, the trial court considered the criminal information and the bill of particulars in light of the Mulkey factors and concluded that the information was sufficiently particular to meet the requirements of Rule 4-202. The victim was a young girl who was abused as early as age six by a trusted relative. The offenses were of a continuing nature over a period of years, which hindered her ability to recall specific dates. Significantly, the State presented to the trial judge information regarding the extent of its knowledge of the timing of the offenses along with information regarding its good faith efforts to determine reasonable dates, just as the Mulkey Court mandated. Id. at 490, 560 A.2d at 31. 3 Moreover, the bill of particulars provided the appellant with additional information on the dates of the offenses by narrowing the time frames to 1980-1984 during the summer months; infrequently in 1985-1988 at the defendant's home, the victim's home, and the defendant's daughter's pool; and June or July of 1988. Considering the circumstances of the case in light of the Mulkey factors, in...
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