In re J.H.

• Decision Date: 29 April 2020
• Docket Number: No. 2461, Sept. Term, 2018,2461, Sept. Term, 2018
• Parties: IN RE: J.H.
• Court: Court of Special Appeals of Maryland

245 Md.App. 605

227 A.3d 681

IN RE: J.H.

No. 2461, Sept. Term, 2018

Court of Special Appeals of Maryland.

April 29, 2020

Argued by: Piedad Gomez (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for Appellant

Argued by: Karinna M. Rossi (Brian E. Frosh, Attorney General, on the brief) Baltimore, MD, for Appellee

Panel: Wright, Reed, J. Frederick Sharer (Senior Judge, Specially Assigned), JJ.^*

Reed, J.

A juvenile petition was filed in the Circuit Court for Charles County, sitting as a juvenile court, charging J.H. (hereinafter "Appellant") with a second-degree sexual offense and assault in the second degree. After an adjudicatory hearing on August 1, 2018, the juvenile court found the Appellant involved in committing delinquent acts as to both counts, and placed Appellant on supervised probation. This appeal followed, wherein Appellant presents four questions for our review, which we have rephrased for clarity:¹

I. Did the juvenile court err when it overruled Appellant’s exceptions to the State’s failure to respond to a demand for a bill of particulars?

II. Was the evidence legally sufficient to sustain the juvenile court’s findings of delinquency pertaining to the act of sexual offense in the second degree?

III. Did the juvenile court err when it admitted the statements of the victim’s² mother and social worker?

IV. Did the juvenile court err when it admitted excerpts of the recorded interview?

For the reasons explained below, we affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

The Alleged Sexual Assault

Throughout the summer of 2017, the victim was dropped off at her grandmother’s house for babysitting. In addition to the victim’s grandmother, Appellant, his sister and his father also lived in this house. A couple of weeks during this summer, the victim stayed at her grandmother’s house Monday through Friday. There were also some Saturdays that the victim spent the night at her grandmother’s home. At the time of these stays, the victim was seven years old, and Appellant was seventeen years old.

While the record is unclear, at some point between July 21st and mid-August of 2017, the victim’s mother recognized that she (the victim) did not want to go to her grandmother’s house, but she wouldn’t say why. When the mother pressed the victim about why, she would just cry. The mother eventually got a new babysitter, and three days later, on or about August 21, 2017, the victim informed her mother that Appellant "had inappropriate contact with her" at her grandmother’s home. The victim stated that the contact occurred on a Saturday, when the victim had stayed overnight. The victim’s mother testified that the victim had last stayed at her grandparents’ house on a Saturday on either July 21 or July 28.

The same day, the mother took the victim to the hospital "to see if she had gotten pregnant." At the hospital, the victim stated that her "vagina ... was hurting a lot." When asked, "What did [Appellant] do that made you have to go to the hospital," the victim later testified, "[h]e put his thing inside me." The victim’s mother then called the police. On August 23, 2017, the victim was interviewed by forensic social worker Kara Finamore ("Ms. Finamore"), an employee of the Charles County Department of Social Services. During this interview, the victim informed Ms. Finamore that "Appellant and Appellant’s sister sexually assaulted her ‘the last time that she went [to her Aunt’s³ home], which was a few days prior’ to the interview." The victim was examined at the Charles Regional Medical Center on August 31, 2017, by forensic nurse examiner Christine Martin ("Ms. Martin"). During the examination, Ms. Martin noticed "a [pea size] partially healed tear" in the victim’s perineum, which "is the area between the vagina and the rectum," but "no trauma to the hymen."

On April 25, 2018, a delinquency petition was filed in the circuit court, charging Appellant with second-degree sex offense and second-degree assault. On June 28, 2018, the State amended the charge of second-degree sexual offense, substituting vaginal intercourse with "genital penetration with penis." Appellant then filed a bill of particulars, requesting more detail regarding the "genital area that was purportedly penetrated." The State responded that "the genital area" would include "the entire female genitalia area, including the anal area."

The Adjudication Hearing

At the adjudicatory hearing held on August 1, 2018, the State presented testimony from the victim, the victim’s mother, Ms. Finamore and Ms. Martin. The victim testified that "one week ago," Appellant put "his penis inside [her]," while they were in his room. The victim stated that she went to the hospital because her "vagina ... was hurting a lot." The victim was asked, "What did [Appellant] do that made you have to go to the hospital," to which she responded, "[h]e put his thing inside of me." On cross-examination, the victim admitted that her mother assisted her with words like "penis" and "vagina." victim could not remember whether she or Appellant were clothed when the contact occurred. She testified that no one else was present, and she "could not remember what it felt like."

The victim’s mother testified about how she came to know about the sexual assault and the subsequent actions she took, as outlined above, as well as her relationships with Appellant, Appellant’s sister and the victim’s grandmother. Ms. Finamore testified that the victim informed her that Appellant and Appellant’s sister sexually assaulted her "the last time she went [to her aunt’s home], which was a few days prior" to the interview.

On August 3, 2018, Ms. Martin, admitted as an expert in forensic nurse examination and evaluation, testified that the "partially healed" "[pea size] tear" to the victim’s "perineum" indicated "some sort of trauma." She described that the perineum is the "posterior fourchette," i.e., "the area between the vagina and the rectum." While Ms. Martin "could not state when the trauma may have occurred ... or what caused the trauma," when pressed by the State, she testified "I would say, within the last month it had happened," since the tear was "granulated" and was "starting to heal." However, Ms. Martin did note that the victim’s vaginal area and perineum was "red and irritated," and that the trauma was in the genital area. She pointed out that the rectum was intact, but was close to the tear, and the victim almost had a "rectal tear

." Ms. Martin further indicated that the perineum would be included in the "vaginal genital area."

The Appellant’s only witness was his father, who testified that the victim was never left in the house without he or the victim’s grandmother being present. Appellant’s father also testified that Appellant was never alone with the victim. Finding that the victim was in fact sexually abused, the juvenile court concluded that Appellant was involved in the delinquent act of second-degree sex offense and second-degree assault and placed him on supervised probation. This timely appeal followed.

DISCUSSION

I. Bill of Particulars

A. Parties’ Contentions

Appellant argues that the State’s amended charging document did not specify the genital area that the State intended to prove was penetrated by Appellant’s penis, according to a demand for bill of particulars. Appellant maintains that because the State did not sufficiently respond to the demand, the juvenile court should have accepted the Appellant’s filed exceptions, dismissing the count of second-degree sex offense. The State submits that a demand for a bill of particulars is not available in juvenile proceedings. The State contends that even if Appellant could have demanded a bill of particulars, Appellant did not timely file an exception, and would not be entitled to relief. The State further claims that even if the juvenile court accepted the untimely filed exception, dismissal would not have been the proper sanction.

B. Standard of Review

" ‘Generally,’ whether to grant or refuse a demand for a bill of particulars is within the trial court’s discretion, in addition to ‘the determination of whether the particulars provided were legally sufficient.’ " Martin v. State , 218 Md. App. 1, 30, 96 A.3d 765 (2014) (quoting Dzikowski v. State , 436 Md. 430, 446-47, 82 A.3d 851 (2013) ) Therefore, the juvenile court’s decision to overrule Appellant’s exceptions to the State’s failure to respond to a bill of particulars is reviewed for abuse of discretion.

C. Analysis

A bill of particulars, while not clearly established by Maryland canon, can be defined as "a formal written statement by the prosecutor providing details of the charges against the defendant. Its functions are to give the defendant notice of the essential facts supporting the crimes alleged in the indictment or information, and also to avoid prejudicial surprise to the defense at trial." Dzikowski , 436 Md. at 446, 82 A.3d 851 (citing 1 Charles Alan Wright et al., Fed. Prac. & Proc. Crim. § 130 (4th ed., April 2012 Update)). As such, a bill of particulars is only applicable in criminal proceedings. The purpose of this type of demand is to ensure that the accused is well informed regarding the scope of proof that the State will be offering to prove its case against the accused. Dzikowski , 436 Md. at 447, 82 A.3d 851. However, "it is not to be used as an instrument to require the State ‘to elect a theory upon which it intends to proceed.’ " Id . (internal citations omitted). Furthermore, it is within the discretion of the trial court to determine if a defendant is entitled to a bill of particulars. See Fraidin v. State , 85 Md. App. 231, 270, 583 A.2d 1065 (1991).

A bill of particulars is most relevant in proceedings where the defendant is charged by a short form indictment. As a supplement to an otherwise sufficient indictment, it "is designed to provide the defendant with information with which he would have been supplied had he been indicted using...