Outmezguine v. State

• Citation: 335 Md. 20,641 A.2d 870
• Decision Date: 01 September 1993
• Docket Number: No. 112,112
• Parties: , 42 A.L.R.5th 835 Elan OUTMEZGUINE v. STATE of Maryland. ,
• Court: Court of Appeals of Maryland

Page 20

335 Md. 20

641 A.2d 870, 42 A.L.R.5th 835

Elan OUTMEZGUINE v. STATE of Maryland.

No. 112, Sept. Term, 1993.

Court of Appeals of Maryland.

June 3, 1994.

Martha Weisheit, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for petitioner.

George E. Simms, III, Sp. Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ., and

CHARLES E. ORTH, Jr. ^* , Judge (retired), Specially Assigned.

MURPHY, Chief Judge.

This case implicates Maryland's child pornography laws. More particularly, it involves the indictment of Elan Outmezguine for "unlawfully photograph[ing] Jennifer [H.] (date of birth February 20, 1975), a minor, engaging in sexual conduct" in violation of Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 419A(c). ¹ This subsection reads:

"Every person who photographs or films a minor engaging in an obscene act or engaging in sexual conduct as defined in § 416A of this article is subject to the penalty provided in subsection (e) of this section."

A "minor" is defined in § 419A(a) as "an individual under 18 years of age." Section 416A(d) defines "sexual conduct" to mean "human masturbation, sexual intercourse, or any touching of or contact with genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex, or between humans and animals." Section 419A(e)(1) makes a violation of subsection (c) a felony punishable by a fine of not more than $25,000 or imprisonment for ten years or both in the discretion of the court.

Outmezguine was convicted by a jury of the offense charged in the indictment; he was sentenced to eight years imprisonment. The judgment was affirmed on appeal. Outmezguine v. State, 97 Md.App. 151, 627 A.2d 541 (1993). We granted Outmezguine's certiorari petition to consider whether "scienter [is] an element of the offense of photographing a minor" under § 419A(c). We also granted the State's conditional cross-petition presenting the question whether Outmezguine "waived his right to appellate review on the issue of a reasonable mistake of age defense."

I

Jennifer H. was a troubled youth. She began using alcohol when she was nine years old and drugs when she was 14. In December of 1990, when she was 15 years old and a student at Wootton High School, she was using cocaine and was admittedly sexually promiscuous. Other than these facts, the testimony adduced at trial painted two markedly different pictures of the facts and circumstances giving rise to this case.

According to Outmezguine, he was in the home improvement and cleaning business in 1990. Photography was one of his hobbies and he occasionally took pictures of professional dancers and models for money. In December of 1990, he stated that he was driving to work when he observed Jennifer hitchhiking. ² Outmezguine testified that he stopped to give her a ride and that she accompanied him to his workplace where she assisted with that evening's cleaning in return for some money. He dropped her off after work around midnight and Jennifer asked him if she could help out with cleaning jobs in the future. He gave her his business card and pager number and she gave him her phone number. ³

Outmezguine said that Jennifer called him approximately two days later and asked if he had any cleaning work for her to do. He needed help so he picked her up the following day for a cleaning job. ⁴ During the day, she asked him whether he had any work for her boyfriend and Outmezguine informed her that he could use an extra man. Shortly thereafter, Jennifer's boyfriend, identified only as "R.C.," Jennifer, Outmezguine, and George Hyde worked on a small job.

According to Outmezguine, the next day R.C. and Jennifer went to Outmezguine's house. Outmezguine stated that Jennifer asked him to show R.C. the album that contained the pictures of nude women. After seeing the album, R.C. asked Jennifer to pose for him. Outmezguine gave Jennifer some of his sister's lingerie and permitted R.C. to use his camera and equipment to take pictures of Jennifer. ⁵ Outmezguine continually denied taking any pictures of Jennifer.

According to Jennifer, Outmezguine initially called her at home, informed her that he knew Jennifer's twin sister, and asked her to pose for some photographs for which she would receive $150. On the telephone, he assured her that she would not have to pose nude. Jennifer agreed, and on December 21, 1990, he picked her up, purchased some wine coolers at a liquor store, and took her to his house, where she consumed some of the wine coolers. He began taking pictures of her in various items of clothing--i.e., underwear, lingerie, and stockings. Jennifer said that Outmezguine supplied some of the clothing while she brought other items with her. One particular piece of clothing which he asked her to wear was a pair of panties, which contained a hole exposing her vagina.

Jennifer testified that Outmezguine instructed her in various poses and took a series of photographs, which she later identified in court. In describing one of the more graphic pictures, she stated that Outmezguine "told [her] to pull back one of [her] vagina lips" and "told [her] to open up [her] vagina." She returned to pose twice more in January of 1991, one time with a girlfriend, Elizabeth Sandell. Jennifer stated that she had various forms of sexual relations with Outmezguine on "at least six [or] seven [occasions]," sometimes at his home, other times in his automobile. ⁶ According to Jennifer, Outmezguine promised her money and drugs in return for the posing and sex but never actually provided her with money or drugs.

Jennifer's mother expressed concern about Jennifer and the lifestyle she was leading. She noticed that Jennifer was having increasing difficulties from January of 1990 until January of 1991. Her mother observed that Jennifer's grades were declining and that she was periodically staying out very late at night, sometimes staying out the entire night. One day, she read Jennifer's diary and realized the depth of Jennifer's problems. Accordingly, she placed Jennifer in an inpatient treatment program for drug and alcohol abuse.

During a counselling session, Jennifer mentioned the series of events that had occurred with Outmezguine. The counsellor informed the police, who obtained a search warrant for Outmezguine's house. During the execution of the warrant, the police discovered cameras, lingerie, and a suitcase that contained, among other things, loose photographs and an album with photographs in it. Jennifer was depicted in many of these photographs and she testified that these were taken by Outmezguine at his home. Many of the other women pictured in the photographs were wearing the same lingerie that Jennifer was wearing in her pictures. In some of the pictures, Jennifer is touching her bare breasts or buttocks. In one picture, she is spreading apart her vagina, which she claimed Outmezguine instructed her to do. Jennifer and her friend, Elizabeth Sandell, age unknown, are depicted in other pictures, which appear to be relatively innocuous when compared to the pictures taken of Jennifer when she was alone. Sandell was not called to testify by either the State or Outmezguine.

Based upon the foregoing information and evidence, the State arrested Outmezguine and charged him with, inter alia, violating § 419A(c). On March 20, 1992, Outmezguine moved to dismiss the indictment alleging that the child pornography statute was unconstitutionally vague and overbroad. He also maintained that the allegations in the indictment were not set forth with sufficient specificity and for that reason the charge should be dismissed. The court denied the motion to dismiss.

During the two day trial in late August of 1992, Outmezguine's primary defense was that he was not the person who took the pictures of Jennifer. He also maintained that he never knew Jennifer's age. He never stated, however, that he believed Jennifer to be 18 years of age or older. During the State's rebuttal, Jennifer stated that she had told Outmezguine her age and that she was a high school student.

At the close of the State's case-in-chief, Outmezguine moved for a judgment of acquittal, arguing that a defendant must have knowledge of the minor's age to be convicted under § 419A(c), and that the indictment failed to allege that Outmezguine knew Jennifer was under 18 years of age. The State averred that knowledge of the minor's age was not an element of the crime under § 419A(c). The court agreed with the State and denied Outmezguine's motion.

At the end of the case, Outmezguine again moved for a judgment of acquittal, which was denied. Outmezguine submitted four proposed jury instructions, all of which centered on the requirement for and definition of "knowledge." ⁷ Although these proposed instructions did not specifically state that a defendant must have "knowledge" of the minor's age before convicting him under § 419A(c), the reasonable inference is that that was what Outmezguine was requesting. ⁸ The court, however, concluded that knowledge of the minor's age was not an element of the crime and therefore did not instruct the jury with regard to a scienter element. Rather, the court instructed the jury as follows:

"In this case the defendant is charged with photographing a minor engaged in sexual conduct. A minor is defined as any person under 18 years of age. Sexual conduct means human masturbation, sexual intercourse or any touching of or contact with the genitals, pubic areas or buttocks of a human male or female or the breasts of the female whether alone or between members of the same or opposite sex or between human[s] and animals."

During deliberations, the jury sent a note to the judge, inquiring whether under § 419A(c), the defendant is required to...