Outmezguine v. State

• Decision Date: 01 September 1992
• Docket Number: No. 1713,1713
• Citation: 97 Md.App. 151,627 A.2d 541
• Parties: Elan OUTMEZGUINE v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 151

97 Md.App. 151

627 A.2d 541

Elan OUTMEZGUINE v. STATE of Maryland.

No. 1713, Sept. Term, 1992.

Court of Special Appeals of Maryland.

July 12, 1993.

Certiorari Granted Nov. 23, 1993.

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

George E. Simms, III, Sp. Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Andrew L. Sonner, State's Atty., for Montgomery County, Rockville, on the brief), for appellee.

Argued before WILNER, C.J., HARRELL, J., and JAMES S. GETTY, Judge (retired), Specially Assigned.

WILNER, Chief Judge.

Appellant was convicted by a jury in the Circuit Court for Montgomery County of child pornography, for which he was sentenced to eight years in prison. He raises three issues on appeal:

I. Whether the trial court erred in ruling that Md.Ann.Code, art. 27 § 419A(c) imposed strict liability and in therefore refusing to instruct the jury regarding a mens rea for that crime.

II. Whether the trial court erred in ruling that the exemptions of art. 27, § 423 did not apply to § 419A and in refusing to instruct the jury with regard to those exemptions.

III. Whether the trial judge improperly considered at sentencing a victim impact statement.

Background

The victim, Jennifer, was a troubled and vulnerable child. She had begun abusing alcohol when she was about nine and drugs when she was 14. In December, 1990, when she was 15 and a high school student, she was on cocaine and was sexually promiscuous.

According to Jennifer, appellant called her at home, told her that he knew her sister, and asked her to pose for him for $150. He said she would not have to pose in the nude. Jennifer agreed, and soon after, on December 21, 1990, he picked her up, stopped at a liquor store to get some wine coolers, and then took her to his house, where she drank some of the coolers. He gave her items of underwear and lingerie to wear, instructed her in various poses, and took a series of photographs that Jennifer identified in court. Jennifer returned to pose twice more in January, 1991, once with a girlfriend. She said that she had various forms of sexual relations with appellant on a number of occasions, some at his home during a photo session, some in a car. Appellant had promised her money and drugs for the posing and the sex but provided neither.

Jennifer's mother had been concerned about the child for some time. One day, she came across Jennifer's diary, read it, and realized that prompt professional intervention was necessary. Jennifer was soon placed in an inpatient treatment program for drug and alcohol abuse. During a counselling session, she mentioned the episodes with appellant, and that led to the involvement of the police. A search warrant for appellant's house was obtained, and, in the course of executing it, the police discovered cameras, lingerie, and a suitcase that appellant admitted belonged to him. In the suitcase, among other things, were many photographs--some loose, some in an album--of Jennifer, which Jennifer testified appellant took at his home. In some of the pictures, Jennifer is touching her bare breast or buttocks. In one, she is spreading apart her vagina, which she claimed appellant instructed her to do.

Appellant, who was about 25 at the time, said that he had been in the home improvement business but took pictures as a hobby. Some of his photographic work involved taking pictures of female dancers. He claimed that he met Jennifer as she was hitchhiking, that he took her to work with him and then dropped her off near where he met her. A few days later, she called and arranged for her and her boyfriend, one R.C., to perform some additional work for appellant. During one of these trips, Jennifer noticed a photo album in appellant's van and commented that she could pose as well. On one later occasion, after completing a job, appellant, Jennifer, and Jennifer's boyfriend R.C. repaired to appellant's house where appellant allowed the boyfriend to use appellant's camera and equipment to take pictures of Jennifer wearing appellant's sister's "clothing." Appellant denied having taken any pictures of Jennifer; he also denied having had sexual relations with her. The jury did not believe him.

Requirement of Mens Rea

Appellant was prosecuted under Md.Code art. 27, § 419A(c). Section 419A is part of the subtitle of article 27 dealing generally with "Obscene Matter," but it is not entirely an "obscenity" statute. It deals with child pornography--the production and dissemination of material depicting children engaged in either "obscene" conduct or other defined sexual conduct that may, but need not, be legally "obscene." For purposes of that section, "minor" is defined as "an individual under 18 years of age." § 419A(a). The term "obscene" is not statutorily defined but partakes the definition Constitutionally allowable. See 400 E. Baltimore St. v. State, 49 Md.App. 147, 431 A.2d 682, cert. denied, 291 Md. 772-74, 778, 780, 782 (1981), cert. denied, 455 U.S. 940, 102 S.Ct. 1431, 71 L.Ed.2d 650 (1982). "Sexual conduct" is defined in § 416A(d) as including "any touching of or contact with the genitals, pubic areas, or buttocks of the human male or female, or the breasts of the female."

Incorporating those definitions, § 419A proscribes three different forms of child pornography. Subsection (b) makes it unlawful for a person to solicit, cause, induce, or knowingly permit a minor to engage as a subject in the production of obscene matter or visual representation or performance that depicts a minor engaged as a subject in sexual conduct. Subsection (c), under which appellant was prosecuted, provides that "[e]very person who photographs or films a minor engaging in sexual conduct" is subject to criminal penalty. Subsection (d) makes it unlawful for a person knowingly to promote, distribute, or possess with intent to distribute any matter or visual representation or performance that depicts a minor engaged as a subject in sexual conduct. As indicated, the word "knowingly" appears in subsections (b) and (d), but not in (c).

No evidence was produced during the State's case-in-chief as to whether appellant knew how old Jennifer was in 1990-91. At the conclusion of the State's case, appellant moved for judgment of acquittal, arguing, in part, that, although § 419A(b) did not expressly require knowledge that the victim was a minor, the law implied such a requirement. The State argued to the contrary--that, while the Legislature had required knowledge in other parts of the statute, it had not imposed that requirement with respect to subsection (c), and that the court ought not to do so. The court said that it was "going to adopt the argument taken by the State" and thus denied the motion. Appellant then testified, thereby effectively withdrawing his motion. Md.Rule 4-324(c).

In his case, appellant asserted that Jennifer had not told him that she was 15 and that he did not know she was 15. He did not say what he thought her age was or whether he knew or suspected that she was under 18. In rebuttal testimony, Jennifer stated that she had told appellant that she was 15 and what school she was attending. She made clear "he knew my age."

At the end of the case, appellant renewed his motion for acquittal for the reasons cited in his earlier motion. The motion was summarily denied, without explanation. Appellee then submitted four proposed jury instructions dealing with the requirement of knowledge. The principal ones were that "[a]ll the acts described in this Section are made criminal only if they are committed knowingly" and that "knowledge must be proven by the State." None of the proposed instructions indicated specifically that the defendant must know that the person being photographed or filmed was under 18; from the brief discussion on the motion for acquittal at the end of the State's case, however, we assume that is what appellant had in mind. ¹ The court denied those requests and essentially read § 419A(c) to the jury as it is written. Although the question of appellant's state of knowledge as to Jennifer's age was not argued to the jury by either side, the jury apparently had some concern about it. During deliberation, it sent out a note, which, despite the court's direction that it be filed, we cannot find in the record. The only reference to it in the transcript is this statement from defense counsel:

"There was a note that was delivered and the Court answered the note. Both answers were no in regards to whether the defendant need know about the child, whether the child be 18, and did he need to know. As I indicated, I thought that both answers should be answered yes. [The prosecutor] thought no. Your Honor said no. I take exception to that note, okay, the answers to the note."

The deceptively simple question here is whether, to convict appellant under § 419A(c), the State must prove that he had knowledge that Jennifer was under 18 when the photographs were taken. The State says "no" because the statute does not require knowledge as an element. Its position is that the Legislature had the opportunity to add the requirement on several occasions, that it, in fact, added the requirement in other subsections of § 419A, and that the omission from subsection (c) was deliberate. Appellant, relying principally on Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988), State v. McCallum, 321 Md. 451, 583 A.2d 250 (1991), and New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), as well as some other out-of-State cases, urges that the requirement must be read into the statute despite its omission by the General Assembly. We agree with the State.

Mr. Dawkins was convicted of possessing a controlled dangerous substance and controlled paraphernalia. Those items were found inside a tote bag that had been in his possession. Dawkins claimed, and offered evidence to show, that the bag...