Poole v. State

• Decision Date: 26 September 2012
• Docket Number: No. 2126,Sept. Term, 2010.,2126
• Citation: 53 A.3d 479,207 Md.App. 614
• Parties: Leroy POOLE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

207 Md.App. 614

53 A.3d 479

Leroy POOLE

v.STATE of Maryland.

No. 2126, Sept. Term, 2010.

Court of Special Appeals of Maryland.

Sept. 26, 2012.

Bradford C. Peabody (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.

Carrie J. Williams (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: ZARNOCH, GRAEFF and JAMES P. SALMON (Retired, Specially Assigned), JJ.

GRAEFF, J.

A jury sitting in the Circuit Court for Worcester County convicted Leroy Poole, appellant, of third and fourth degree sexual offenses, second degree assault, false imprisonment, and sexual solicitation of a minor. The court imposed a sentence totaling twenty years imprisonment: ten years for the third degree sexual offense; ten years for false imprisonment, to be served consecutively; and ten years for the conviction of sexual solicitation of a minor, to be served concurrently.¹ It also ordered appellant to register as a sex offender.

Appellant presents four questions for our review, which we have reordered and rephrased slightly, as follows:

1. Was it prejudicial error to allow the detective to remain in the courtroom as the State's representative during the victim's testimony?

2. Was the evidence sufficient to support appellant's conviction of third degree sexual offense?

3. Was the evidence sufficient to support appellant's conviction of sexual solicitation of a minor?

4. Does sexual solicitation of a minor to engage in a third degree sexual offense merge into the third degree sexual offense?

For the reasons set forth below, we agree that the evidence was insufficient to support the conviction for sexual solicitation of a minor, and therefore, we shall reverse that conviction, but otherwise, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

The victim, K.G.,² testified that, on June 27, 2009, she was visiting Ocean City from Kansas with her 4–H group. She was 15 years old at the time. At approximately 10:00 or 11:00 a.m., she was at a lemonade stand on the boardwalk. Appellant approached her, introduced himself as “Leroy,” and asked for her name. She gave him her name, and he gave her his business card, which indicated that he was a personal trainer. Finding the incident “ridiculous,” Ms. G. laughed about the encounter and returned to the beach with her friends.

After a few hours, Ms. G. returned to the lemonade stand. A posted sign indicated that the stand was temporarily closed, but the stand worker would return in five minutes. Ms. G. decided to go into the store next door to pass the time. When she entered the store, “the guy behind the counter asked me if I was looking for Leroy, and I said no.” The man then put his arm around her and tried leading her to the back of the store. Ms. G. said: “[N]o, I'm just going to look at these belts,” and the man said “okay” and returned behind the counter. She had never seen the man behind the counter before.

Appellant then walked in and told Ms. G. that he had wanted to show her something earlier. She testified that appellant then “led me to the back with his arm behind me, guiding me to the back, and I just kind of went with it, because I didn't know what to do.” She had no idea where he was taking her or what was happening, and appellant “was behind me and he was just kind of pushing me there, but not being really forceful but still leading me there.” He did not say anything. He took her to a closet, shutting the door behind him and locking it. He then “pushed me into the bathroom with him,” and shut that door and locked it. The bathroom was an interior room within the closet. She described the bathroom as “[r]eally, really small,” “very crowded and really grossly dirty.” There was no one else around. Appellant's body blocked the door to the bathroom, which was the only exit.

Once they were inside the bathroom:

He had me up against the wall, and it was really small so I couldn't move around him, and he is huge compared to me. So I couldn't move around him. And he just told me that I was really beautiful. And he would try lifting up my dress that I had over my swim suit, and I told him no, and I did tell him that I was 15, because I didn't know how old he was. And I just said, I could get you in a lot of trouble for what you are doing. And he kept trying to kiss me. And he like touched my hair a lot. And he wound up lifting my dress up and putting his hand in my pants and ... fingering my vagina.

During the encounter, appellant continued telling Ms. G. that she was beautiful, and “he was apologizing, ... saying I'm sorry, you're just so beautiful.” She asked him his age “because I could see white stubble,” and he had told her earlier that he was in his late twenties. Appellant then pushed her down to the toilet seat, unbuttoned his pants, and started fondling himself with his hand on the outside of his underwear. She described how the encounter ended:

He was fondling himself, and I ... kept asking him to stop, and he wouldn't, and he would just apologize. And I told him if you are so sorry you are not showing it, and he finally apologized, and ... re-did his pants, and tried kissing me again, and he pushed his face up against mine and looked in the mirror and said we look beautiful together. And then he opened the door and he led me out.

The entire incident lasted approximately ten minutes. She testified that she was “[t]errified. Like, I couldn't handle the situation. I didn't know what was going to come of it.”

She “felt that if [she] screamed or something it would make him angry, which could have made things worse.” Appellant tried talking to her and “getting my phone number, and he got my phone number by going through my phone.”

Appellant said that he hoped to see her again. He later sent her a text message, stating “good afternoon,” but she did not reply. The text message was the last contact that she had with him.

Detective Nicholas Simpson, a member of the Ocean City Police Department, testified that he initiated an investigation of the incident after a sexual assault complaint had been brought to his attention by the police department in Ms. G's home state. He obtained appellant's business card and then attempted to contact appellant, who declined to be interviewed. Afterconducting several interviews and running appellant's name through a police database, Detective Simpson was able to identify appellant.

The State rested. Counsel for appellant moved for a judgment of acquittal as to all counts, which the court denied.

Appellant then took the stand, testifying that he had no recollection of anything that happened on the day that Ms. G. said she met him. He did not recall meeting Ms. G. During cross-examination, he stated that he would be “46 in a couple of weeks,” and he was 6'5? tall, weighing 260 pounds.

Defense counsel then renewed the motion for judgment of acquittal, arguing specifically that the evidence was insufficient to support a conviction for third degree sexual offence and sexual solicitation of a minor. The court denied the motion.

As indicated, the jury convicted appellant of third degree sexual offense, fourth degree sexual offense, false imprisonment, second degree assault, and sexual solicitation of a minor. Appellant filed a timely notice of appeal.

DISCUSSION

I.Sequestration

Before trial began, defense counsel asked the court to sequester the two witnesses who would be testifying for the State, the victim and Detective Simpson. The prosecutor responded: “[T]he State would ask that Detective Simpson remain in the courtroom as the State's representative. And I believe [Ms. G.] has a right to remain in the courtroom as a victim in the crime.” The court denied the motion, and the trial proceeded.

During Detective Simpson's testimony, the State asked what information Detective Simpson gathered about Mr. Poole during his investigation, and the following occurred:

DETECTIVE SIMPSON: I was able to learn, after speaking with [Ms. G.] on the telephone and conducting a telephone interview of the story that she's basically explained to the jury this morning, she was on the boardwalk with a 4–H trip. It was her first time ever to Ocean City—

DEFENSE COUNSEL: We would object to this. This would be hearsay.

THE COURT: Sustained.

Appellant argues that the court erred in denying his motion to sequester Detective Simpson. He contends that a detective who is a State's witness should be subject to sequestration “to discourage fabrication, inaccuracy and collusion.” Appellant asserts that “the prejudice caused by the error is clear,” arguing that the detective “improperly bolstered” Ms. G's credibility with the jury by testifying that, “after speaking with [Ms. G.] on the telephone and conducting a telephone interview,” he was able to learn “the story that she's basically explained to the jury this morning.”

The State contends that the trial court properly permitted Detective Simpson to remain in the courtroom as the State's representative. It points to Maryland Rule 5–615(b)(2), which excludes from the sequestration requirement “an officer or employee of a party that is not a natural person designated as its representative by its attorney,” arguing that this rule encompasses “investigative agents of the government in criminal cases,” including Detective Simpson. The State further argues that, even if the court did err, “any error is harmless,” noting that Detective Simpson made only one reference to what K.G. told him, and appellant's objection on hearsay grounds was sustained.

We agree with the State that there was no error. As explained below, the court properly denied the motion to sequester Detective Simpson pursuant to Rule 5–615(b)(2).

Maryland Rule 5–615(a) provides, in part, as follows: “Except as provided in sections (b) and (c) of this Rule, upon the request of a party made before testimony begins, the court shall order witnesses excluded so that they cannot hear the...