Perez v. State
| Decision Date | 29 September 2011 |
| Docket Number | 2009.,Sept. Term,No. 2000,2000 |
| Parties | Juan Maximo PEREZv.STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Piedad Gomez (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.Jeremy M. McCoy (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.Panel: WRIGHT, MATRICCIANI, FREDERICK J. SHARER, (Retired, Specially Assigned), JJ.MATRICCIANI, J.
Juan Maximo Perez, appellant, was convicted by a jury sitting in the Circuit Court for Montgomery County of child sexual abuse and fourth degree sexual offense against his fourteen-year-old step-daughter, Giselle D. He was sentenced to ten years of imprisonment, with five years suspended in favor of five years of supervised probation, for the child sexual abuse conviction. His remaining conviction merged at sentencing.
Appellant noted a timely appeal and presents one question for our review: “Did the trial court err in its response to a jury question?” We answer in the negative and therefore shall affirm the judgment of the circuit court.
At trial, Giselle D. testified to the following. On December 29, 2008, her mother, Frances Pena, forced her to take a home drug test after finding marijuana in her bedroom. The test result was positive. Giselle's mother threatened to give the test to police as a punishment, but never did so.
Later that evening, appellant entered the bathroom while Giselle was inside preparing for bed. He told her, “I'll throw away this drug test if you let me prove that you're a virgin.” Appellant explained that he would test her virginity by “put[ting] his finger inside of [her].” He then threatened, “I don't think you are, so I'm going to tell your mom that you're not if you don't let me do this.”
Giselle was uncomfortable and confused about what to do. However, she decided to let appellant test her virginity for fear of getting into trouble with her mother or police. She explained at trial, Appellant proceeded to digitally penetrate Giselle's vagina. Giselle became more uncomfortable and said to appellant, He responded, Giselle again told appellant to stop, but he kept trying to convince her to let him continue the “test.” Finally, Giselle pulled away and exited the bathroom.
Even later that evening, appellant sat beside Giselle while she was sitting on the sofa watching television and began asking if she and her friends would engage in sexual acts with him in exchange for money. She told him no. The next day, appellant attempted to continue the conversation with her. He also offered to allow her to drink beer with him in his bedroom. She declined his invitation.
Later that day, appellant again broached the subject. This time, however, he also placed his hand inside of Giselle's pajamas and touched the outside of her vagina. After Giselle recoiled to the other end of the couch, appellant left, telling her, “Well I'll give you some time to think about it, and I'll come back later.” Giselle ran to Teresa Rivas's house, who was a friend of her mother. Giselle told Rivas what appellant had done and called her mother. At her mother's suggestion, Giselle called the police. The police set up a recorded telephone call between Giselle and appellant in an attempt to get him to admit to the sexual contact. Giselle's mother was home by that time, however, and appellant made no admissions.
Pena testified that after she spoke with Giselle, appellant called her and said, “Giselle is going to accuse me of something.” Pena asked what and he said, He explained that he just wanted to convince her that Giselle was sexually active. She told him that she told Giselle to contact the police.
Detective Sally Magee and Detective Levi Renno of the Montgomery County Police Department testified that during an interview with appellant, he admitted to digitally penetrating Giselle, explaining that he was certified in gynecology in his native country of Cuba to determine virginity and gestational months from digital penetration. However, appellant could not remember the name of the medical school where he studied. Appellant advised that he was concerned that Giselle was sexually active because of her young age. He also stated that it was Giselle who placed his hand down her pants so that he could perform the “test” and prove that she was not a virgin. After penetrating her, appellant confirmed that Giselle was not a virgin. Appellant denied touching her the next day, however, and insisted that it was Giselle who offered to have sexual intercourse with him. Appellant admitted that he knew it was wrong to digitally penetrate Giselle.
In addition to Giselle D., Frances Pena, Officer Kevin McGlamary, Detective Sally Magee, and Officer Levi Renno also testified during the State's case-in-chief. Appellant did not testify or present any witnesses in his defense.
At the close of the evidence, the court instructed the jury on the crime of fourth degree sexual offense as follows: “In order to convict [appellant] of fourth-degree sexual offense, the State must prove first that [appellant] had sexual contact with Giselle [ ]; and, secondly, that the sexual ... contact was made against the will and without the consent of Giselle [ ].”
The court then instructed the jury on child sexual abuse as follows: “As to child sexual abuse, child abuse is sexual molestation or exploitation of a child under 18 caused by a parent or other person who has permanent or temporary care, custody or responsibility for the supervision of that child or by any household or family member.”
The jury retired to deliberate, and during its deliberations submitted a note to the court stating:
We have a request for clarification on the offense titled
4th degree sexual offense:
When it states
‘ 'sexual contact was made against the will and without consent’
Where does exploitation or coercion fall? Is it against her will or not?”
After an extended colloquy among the court, defense counsel, and the prosecutor, the court provided the following written response to the jury question: “Consent means actually agreeing to the act, rather than merely submitting as a result of threats or coercion.”
The jury ultimately found appellant guilty of fourth-degree sex offense and child sexual abuse for the events that occurred on December 29, 2008. The jury acquitted appellant on charges of fourth degree sexual offense based upon the events alleged to occur the following day, December 30, 2008. As previously noted, appellant was sentenced to ten years of imprisonment, with five years suspended in favor of five years of supervised probation, for the child sexual abuse conviction, which was merged with the fourth-degree sexual offense conviction for sentencing purposes. Appellant then timely noted the present appeal. Additional facts will be provided as necessary.
Appellant contends that the circuit court erred in its response to the jury question. Specifically, he argues that “the court's response to the jury's question, which went beyond the statutorily defined offense, provided the jury a prejudicially erroneous definition of ‘consent.’ ” Relying upon State v. Rusk, 289 Md. 230, 424 A.2d 720 (1981), he posits that, “The court's response failed to convey that for submission to constitute lack of consent, the complainant must be faced with a ‘compelling force’ or a fear so extreme that it renders the mind incapable of resisting.” Accordingly, he concludes that Giselle's testimony was insufficient to prove lack of consent.
The State responds that the court acted within its discretion in giving the supplemental jury instruction. Specifically, it argues that appellant overstates the Rusk holding, which does not require “a ‘compelling force’ or a fear so extreme that it renders the mind incapable of resisting,” to prove lack of consent. It posits that the court properly looked to the Maryland Criminal Pattern Jury Instructions (MPJI–CR) and appropriately modified the definition of consent set forth in the second degree rape instruction. It concludes that Giselle's testimony was sufficient to prove her lack of consent.1
Maryland Rule 4–325 governs jury instructions. It provides in pertinent part:
(a) When given. The court shall give instructions to the jury at the conclusion of all the evidence and before closing arguments and may supplement them at a later time when appropriate. In its discretion the court may also give opening and interim instructions.
* * *
(c) How given. The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding. The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.
An “instruction” includes any “communication from the judge to the jury made after the close of the evidence.” Lansdowne v. State, 287 Md. 232, 243, 412 A.2d 88 (1980). In Brogden v. State, 384 Md. 631, 866 A.2d 129 (2005), the Court of Appeals observed that “a question of ‘[w]hether to give a jury supplemental instructions in a criminal cause is within the discretion of the trial judge.’ ” Id. at 640, 866 A.2d 129 (quoting Lovell v. State, 347 Md. 623, 657, 702 A.2d 261 (1997)). It elaborated upon a trial judge's...
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