McCauley v. State, 2377

• Decision Date: 11 January 2017
• Docket Number: No. 2377,2377
• Parties: MALIK R. McCAULEY v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

MALIK R. McCAULEY v. STATE OF MARYLAND

No. 2377

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

January 11, 2017

UNREPORTED

Kehoe, Berger, Thieme, Raymond G., Jr. (Senior Judge, Specially Assigned) JJ.

Opinion by Kehoe, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. See Md. Rule 1-104 Malik R. McCauley was convicted of attempted third degree sex offense in the Circuit Court for Cecil County. Appellant appeals his conviction and presents two issues, which we have reworded:

I. Is attempted third degree sexual offense a crime?

II. Based upon the evidentiary record before it, was there legally sufficient evidence to support the trial court's finding that McCauley had taken a substantial step or overt act towards the commission of third degree sexual offense?

We answer "yes" to both questions and will affirm the circuit court.

Background

Appellant, an adult, sought to inveigle a fourteen year-old high school student into a sexual relationship. As part of his scheme, appellant purchased a cell phone for the victim and exchanged text messages with her. When the victim's grandmother learned of their interaction, she notified the Maryland State Police. After an investigation, McCauley was charged with one count of sexual solicitation of a minor,¹ and one count of attempted third degree sexual offense.²

On the day of trial, counsel informed the court that the State intended to nol pros the sexual solicitation of a minor charge and to try the attempted third degree sex offense. There are several varieties of third degree sexual offense; the theory of the State's case was that McCauley violated Md. Code Ann., § 3-307(a)(4) or (5) of the Criminal LawArticle ("Crim. Law").³ In lieu of presenting testimony, counsel proceeded on what they, inaccurately, termed "an agreed statement of facts." This consisted of a narrative presented to the court by the prosecutor together with text messages recovered from the cell phone. We set out the relevant portions of the transcript of the proceedings (emphasis added):

THE PROSECUTOR: Judge, this is Malik R. McCauley, K-14-538. It's my understanding that with regard to Count 2 the defendant is going to be entering a not guilty plea. We'll read into the record an agreed statement of facts, and go from there. State will be nol-prossing Count 1.

DEFENSE COUNSEL: That's correct, your Honor. And just to let the court know, there will be argument from each side after that.

THE COURT: Okay. Now, Mr. McCauley, is that the way you want to proceed?

THE DEFENDANT: Yes.

. . . .

THE PROSECUTOR: Judge, on 3-13-2014, [S.] responded to the North East Police Barracks -- State Police Barracks to report a possible crime again her granddaughter [D.].⁴ S. told the trooper that [D.] had gotten into a strange man's car and drove off from Route 272 near Howard's Market to the Walmart at 75 North East Plaza.

Once at the Walmart the man bought D. a cell phone. S. was concerned about this because D. is a fourteen-years-old, and the man was reportedly much older. She was able to describe the man . . . but only knew him as Malik. S. told thetrooper that D.'s mother was aware of the incident, but did not wish to be involved. [S.] had the cell phone with her.

Trooper LeCompte then contacted D., who agreed to let him look at the software to identify Malik. She also signed a consent form for such. As the trooper was reading the text conversation between D. and Malik, he was listed on the phone as Boo -- and that's Malik listed on the phone as Boo. He received a text message from Malik. He then engaged him in a text conversation, attempting to identify him.

Judge, the text messaging with the trooper begins on 3-13 at 5:30 p.m. All other texts are between the victim and this defendant.

In speaking with the trooper via text [McCauley] wrote that he wanted -- the defendant said that he wanted to pick D. up at school tomorrow and hang out. In an earlier text message, which you will see, . . . he said he wanted to fall back with D. The trooper then asked D. what was meant by the term fall back, and she said it was a reference to sex. If called to testify the defendant would say that fall back means -- is a reference to hang out and chill.

The trooper continued texting Malik and made arrangements to meet him after school on 3-14 at 1430 hours. He then responded to the Walmart and retrieved video footages -- video footage of Malik and D. The video shows Malik with his arm around D. and at one time with his hand on her hip sliding to her buttocks. The video showed Malik buy D. the cell phone paying cash. There was no information exchanged, as it was a pay-as-you-go phone.

On 3-14-2014 the trooper texted Malik again saying, I'm bored. His response, meaning the trooper -- excuse me -- the defendant's response was that he would come to D.'s school earlier in the day and keep her company. The trooper continued to text him during the day firming up plans to meet.

Malik wanted to meet at the school and take D. away with him. The trooper wanted to avoid any confrontation at the school, and convinced him to meet somewhere else. At approximately 1535 hours after multiple texts and three failed meeting places, which were the school, Howard Market and the Flying J, it was finally arranged that they would meets at the Walmart.

. . . .

Trooper Holloway observed a man fitting the picture that they had printed from the Walmart security video footage of what appeared to be the defendant Malik, sitting in a Mercury Mountaineer in the Walmart parking lot. Troopers approached him, confirmed his name was Malik McCauley. He was there detained -- he was then detained for questioning. Trooper Parker drove thevictim, D. past Malik, and she confirmed that that is the man who bought her the cell phone.

Due to the nature of the investigation, Trooper LeCompte transported Malik back to the North East Barrack for questioning. While in route to the barracks the defendant said he was there to meet a girl named D., and that without any prompting, without any questions from the trooper. . . .

THE PROSECUTOR: He signed the Miranda warnings waiving his rights and agreeing to speak with the trooper. He then -- Malik then led the trooper throughout the encounters with D., to which the trooper made written notes. He spoke with the defendant first and then to D. and then to the defendant again. After these conversations their account of their meeting was similar. Both said they initially met in a Walmart in North East about three weeks ago. At that meeting defendant gave his number to D.'s cousin, and D. and Malik texted a few times, but then lost contact.

On 3-13-2014 they both stated that Malik, the defendant, saw D. walking on Route 272 and stopped to talk with her. That conversation led to D. . . . voluntarily getting into the defendant's car. Once in the car they both stated that the defendant asked what D.'s age was, and she told him she was in high school. Malik, the defendant, said -- told the trooper that D. said she was eighteen. D. told the trooper that she told the defendant, honestly I'm fourteen, to which . . . the defendant said that she looked like she was sixteen or seventeen.

They both agreed that they went to the Walmart store and Malik bought her a cell phone. They then both state that the defendant drove her from North East to Elkton[.]

Then the defendant took D. home[.] They both agreed that D. had him stop short of her house so that her mom would not see him drop her off. D. then hugged the defendant, who then kissed her on the cheek. Then D. exited the vehicle.

The trooper asked each of them what the intent of today's meeting -- what was their intent of today's supposed meeting. The victim told the trooper that she was under the impression this was going to -- this was going to develop a sexual relationship. The defendant told him that he wanted to hang out, but admitted that he intended a sexual relationship with D., who he still claimed he thought was eighteen years old.

All events occurred in Cecil County.

DEFENSE COUNSEL: Your Honor, that is the statement that was agreed upon by the state and by the defendant. The only, I think, additional information is we have the cell phone so we can let the court see the actual communication between the defendant and the victim, as well as the defendant and the police officer.

THE PROSECUTOR: Can I approach?

. . . .

(Whereupon, the judge read the text messages.)

THE COURT: All right. So I take it from looking at this cell phone text messages it starts with the alleged victim sending messages. And . . . then the defendant, what's up. The victim, chilling, just got in the house. What about you. I'm on my way to my cousin's house. That's what's up. After your class make sure you call me because I want to chill with you. All right. I got you. And honestly what I might just do is sneak out and chill because my mom isn't in a good mood. Okay. That's cool. What time you think. When's good for you. Whenever. I really didn't want you to leave. We could have went somewhere to fall back. Whatever. I really didn't want you to leave. We could have went somewhere to fall back. I feel you. I didn't want to leave either. So I guess just call me after you come from class. All right. I will. And again, the alleged victim, send me a picture for your contact photo. Defendant, I don't like taking pictures, babe. For me, please. I can do anything for you besides that. It's a bigger reason why, but once we get to really know each other I'll let -- I'll let you know. All right. Then the victim, all right. Sounds cool. Do you got a Facebook. No. Damn, babe. When I see you later on today I'll explain why.

This evidently is where the officer kicks in. Okay. I'm at drug and alcohol now. And response is K. I'm out for tonight. I'll be back up tomorrow. Call me when you

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