Juan Pablo B. v. State
| Decision Date | 29 September 2021 |
| Docket Number | No. 2614, Sept. Term, 2019,2614, Sept. Term, 2019 |
| Parties | JUAN PABLO B. v. STATE of Maryland |
| Court | Court of Special Appeals of Maryland |
Submitted by: Michael T. Torres (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.
Submitted by: Peter R. Naugle (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
Panel: Kehoe, Leahy, Friedman, JJ.
A jury sitting in the Circuit Court for Prince George's County found Juan Pablo B. ("Appellant") guilty of sexual abuse of a minor, third-degree sexual offense, and second-degree assault. The court imposed concurrent sentences totaling 25 years’ imprisonment, with all but 20 years suspended. During the sentencing hearing, the court articulated various "conditions of probation," including lifetime sex offender registration, but failed to announce that Appellant was to serve a period of probation, and for how long, following his release from prison. Appellant noted this appeal and raises two issues as follows:
We hold that the circuit court did not abuse its discretion in giving a modified Allen instruction.1 We find merit in Appellant's second contention, however, and conclude that the circuit court illegally increased Appellant's sentence by adding a five-year period of probation. Therefore, we remand with instructions to strike the period of probation from the docket entry, commitment record, and probation order. At the same time, the circuit court should clarify that, as a result of Appellant's convictions, he remains subject to the conditions of lifetime sexual offender supervision that were imposed in accordance with Maryland Code (2001, 2018 Repl. Vol.), Criminal Procedure Article ("CP"), § 11-723.2
The victim in this case was Appellant's daughter, V.3 At the time of the offenses, V. lived with her parents, Appellant and Irma D., in a one-bedroom apartment in Hyattsville in Prince George's County. Both parents worked, and Appellant frequently was home alone with V.
V. testified at trial that the abuse began before she had reached the age of ten. The first incident that she could recall happened when she was on the couch, watching television, and Appellant ran his hands along her thighs and up to her "private parts." According to V., Appellant would abuse her in this manner "multiple times when" they "were home alone."
On another occasion, while V. was in the kitchen preparing food, Appellant approached her from behind and fondled her breasts. At other times, Appellant would crawl into V.’s bed while she was trying to sleep and "touch" her. V. then testified that Appellant raped her one evening, just before they were supposed to leave to pick up her mother from work. On yet another occasion, Appellant entered the bathroom while V. was bathing and took photographs of her. Appellant occasionally played pornographic videos in V.’s presence and would tell her various sexual acts that he wanted to perform with her.
Eventually, when she was approximately 15 years old, V. told her cousin that her father had been sexually abusing her. Shortly after that, V. also informed her aunt, uncle, and mother of the abuse.
V.’s mother notified the police that her daughter had been sexually abused by her husband. Ultimately, a four-count indictment was returned, in the Circuit Court for Prince George's County, charging Appellant with sexual abuse of a minor family member, rape in the second degree, sexual offense in the third degree, and assault in the second degree. The matter proceeded to a two-day jury trial, during which only V. and her mother testified. The jury acquitted Appellant of second-degree rape but found him guilty of the remaining charges.
The court sentenced Appellant to the following concurrent terms of imprisonment: (1) for sexual abuse of a minor, 25 years, with all but 20 years suspended; (2) for third-degree sexual offense, ten years, with all but two years suspended; and (3) for second-degree assault, ten years, with all but six months suspended. The court also ordered, among other things, that Appellant register as a lifetime sexual offender.
At the sentencing hearing, the court mentioned terms of probation but failed to state that it was imposing a period of probation. The same day, but after the hearing had concluded, the court issued a probation order, signed by Appellant, stating the conditions of probation and that Appellant was subject to a five-year term of probation upon release from incarceration.
We include additional facts in our discussion of the issues.
When, at the close of the State's case-in-chief, the parties and the court conferred on instructions, the court noted that "[b]oth parties [were] requesting [instruction] 2:01, jury's duty to deliberate," but that it would "hold off on that one" because it "normally" would not give that instruction "until we have the Allen charge situation."4 Subsequently, after the jury had been deliberating approximately 90 minutes, it sent a note to the court, stating: A bench conference ensued.
The court informed the parties that it had received the jury note and sought their views on what course of action it should take. The prosecutor suggested that the court should simply advise the jury to continue its deliberations, and defense counsel concurred. The court disagreed, observing that "the jury has had approximately an hour and a half to review the testimony" of the principal witness and that her testimony "was enough for the jury to arrive with a verdict on the majority of the counts." Noting that the jury was "looking for guidance with respect to their current position of being deadlocked on one count," the court declared that, "[o]ver the objections of both parties," it would give the modified Allen instruction, MPJI-Cr 2:01, and it proceeded to do so. Just over twenty minutes later, the jury rendered its verdict, acquitting Appellant of second-degree rape and finding him guilty of the remaining charges.
Appellant contends that the circuit court abused its discretion by giving a modified Allen instruction after the jury had deliberated "for only 90 minutes," near the end of the day, and after both the defense and prosecution objected to giving the instruction. Recognizing that the instruction given by the judge closely tracked MPJI-Cr 2:01, Appellant maintains, nonetheless, that the court abused its discretion in giving that instruction under the circumstances of this case. The State counters that, under all the circumstances (and largely for the reasons expressed by the judge), the court did not abuse its discretion.
We begin our analysis with Maryland Rule 4-325 governing jury instructions. The Rule states in relevant part:
Under Rule 4-325(a), the court "may supplement" the instructions "at a later time when appropriate." Then, under Rule 4-325(c) the court "may ... instruct the jury as to the applicable law and the extent to which the instructions are binding." Attendant to the trial court's broad authority in this regard, our review of the court's decision to give a particular jury instruction is under an abuse of discretion standard. Appraicio v. State , 431 Md. 42, 51, 63 A.3d 599 (2013). "Where the decision or order of the trial court is a matter of discretion it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Atkins v. State , 421 Md. 434, 447, 26 A.3d 979 (2011) (quoting Gunning v. State , 347 Md. 332, 351-52, 701 A.2d 374 (1997) ).
As Judge McDonald explained in Armacost v. Davis , 462 Md. 504, 510-11, 200 A.3d 859 (2019). "Supplemental instructions can include an instruction given in response to a jury question." Appraicio , 431 Md. at 51, 63 A.3d 599. When the trial court is presented with a jury question, it "must respond with a clarifying instruction when presented with a question involving an issue central to the case." Id. (quoting Cruz v. State , 407 Md. 202, 211, 963 A.2d 1184 (2009) ).
Here, among the circumstances the court faced were: the jury presented the court with a note, stating that it had reached agreement on three of the four charges but was deadlocked on the remaining one and requested guidance on how to proceed; the trial court had not given the duty-to-deliberate instruction, as requested by the parties, when it instructed the jury prior to the beginning of deliberations; the parties then objected to the instruction;...
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