Raynor v. State
| Decision Date | 24 April 2020 |
| Docket Number | No. 2357,2357 |
| Parties | GLENN JOSEPH RAYNOR v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Harford County
Case No. 12-K-18-000209
UNREPORTED
Opinion by Wells, 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. Md. Rule 1104.
Appellant, Glenn Joseph Raynor, was indicted in the Circuit Court for Harford County and charged with kidnapping and multiple sex offense. He was tried and convicted by a jury of sexual offense in the first degree, sexual offense in the second degree, and sexual offense in the third degree. After merging the sexual offense in the second degree, Raynor was sentenced to life imprisonment for sexual offense in the first degree, and 10 years consecutive for sexual offense in the third degree. On this timely appeal, Raynor asks us to address the following questions:
For the following reasons, we shall affirm.
Motion in Limine (Part 1)1
See Raynor v. State, 201 Md. App. 209 (2011) (), aff'd, 440 Md. 71 (2014), cert. denied, 135 S. Ct. 1509 (2015).
After Raynor's DNA was placed in the CODIS system, the Harford County Sheriff's Office compared that evidence with older cases and was able to determine that Raynor's DNA matched evidence retrieved in this case.3 According to the State's proffer, the victim here, S.S., was approached outside her residence at night, and was "dragged into a car where she was sexually assaulted and during the assault the T-shirt was tied over her face in order to obscure the identity of her assailant." The State informed the court that it had notified the defense, pursuant to statute, that it wanted to admit evidence of the earlier sexually assaultive behavior against M.W. in this case involving S.S. in order to prove alack of consent, based on the recent passage of the "Repeat Sexual Predator Prevention Act of 2018." 2018 Md. Laws Chs. 362-63 (eff. July 1, 2018), codified at Maryland Code (1973, 2013 Repl. Vol., 2019 Supp.) Courts and Judicial Proceedings Article § 10-923. That statute provides that, after notice by the State and a hearing before the court outside the presence of the jury, "evidence of other sexually assaultive behavior by the defendant occurring before or after the offense for which the defendant is on trial may be admissible." § 10-923(b). The statute specifically provides:
The State further noted that, even if the defense theory of the case was not that this was a consensual encounter, lack of consent remained an element of the offenses that the State was required to prove in any event. See Merzbacher v. State, 346 Md. 391, 411 (1997) (). Therefore, the State sought to admit this evidence of other sexually assaultive behavior by Raynor in its case-in-chief.
In response, Raynor argued that Section 10-923 was a "narrowly tailored" statute that did not simply permit admission of any prior sexual assault. Instead, counsel contended that the legislature "circumscribed two very specific reasons that evidence of prior or subsequent sexual offenses could be admissible, one of which does not apply today, the other of which is consent." Raynor's argument was, because the prior case involving victim M.W. did not involve a defense theory of lack of consent, but instead was based on identification of Raynor as the assailant, the statutory requirements were not met in this case. Raynor also cited Hurst v. State, 400 Md. 397, 406 (2007), as support for his argument for exclusion. Moreover, Raynor's counsel informed the court that he did not know, at this point, whether he would rely on the theory that the victim, S.S., consented in this case. Raynor further argued that the prior sexually assaultive behavior was "not connected" to this case and would be unfairly prejudicial. And, consistent with the argument being raised on appeal, Raynor asserted that application of the law in this case to behavior that occurred years before the enactment of Section 10-923 was prohibited as ex post facto.
In rebuttal, the State maintained that the court need not wait until there is evidence of consent before ruling that the other sexual assault is admissible because consent "is not an affirmative defense, it is rather a burden of the State to prove lack of consent against the will" of the victim beyond a reasonable doubt. The State also countered that the plainlanguage of the statute did not require that the other sexual assault must have involved a claim that the offense was consensual. The State further suggested that a limiting instruction could be crafted to address any allegation that Raynor was unfairly prejudiced by the other evidence. And, as for the ex post facto argument, the State asserted that the statute was not a substantive change in the law or penalty for sexual assault cases but was an evidentiary change that was not subject to the prohibition. The court reserved ruling on the Section 10-923 arguments until later during trial.4
After trial commenced, specifically after jury selection but prior to opening statements, the court ruled on certain aspects of the motion. Relying on the principle that statutory changes in procedure or remedy, as opposed to substantive rights, are given retrospective effect unless a contrary intention is evidenced, see Wyatt v. State, 149 Md. App. 554, 563-64 (2001), the court found that Section 10-923 concerned the admission of evidence and was a procedural change in the law. The court concluded that there was no prohibition of the admission of the evidence under ex post facto principles of law.
The court then made two technical rulings that are not at issue on appeal. It found that the fact that the incident in this case occurred prior to the incident involving M.W. was not prohibitive because Section 10-923(b) made no such distinction.5 The court also foundthat the State had met the notice requirements of Section 10-923(c) and that the court had held a hearing pursuant to Section 10-923(d).
Turning finally to Section 10-923(e), the court reserved on the question of whether the evidence was being offered to prove lack of consent, under subsection (e)(1), and on the issue of the balancing of probative value versus unfair prejudice, under subsection (e)(4). As for Section 10-923(e)(2), the court found that counsel had a prior opportunity to cross-examine the victim/witness from the prior case and that, according to the State's proffer, that same witness would be testifying in this case as well. The court also found that the prior sexually assaultive behavior was established at the prior proceeding by clear and convincing evidence, as required by subsection 10-923(e)(3). After directing that counsel refrain from mentioning the prior sexually assaultive behavior until the court made its final ruling, the court also noted that it was reserving on the question of whether, in the alternative, the other evidence was admissible under Maryland Rule 5-404(b).
Trial (Part 1)
S.S. testified, on the night of July 30-31, 2005, she left the townhome she shared with her husband and her then three-year-old daughter to go out to a bar/restaurant known as Big Daddy's, located in Hickory, Maryland, to meet her friend D. L. S.S. socialized and danced at Big Daddy's until around 1:45 a.m. when the bar closed for the evening. As S.S. drove herself home, she noticed that there was a black, two-door car, with tinted windows,that appeared to be following her. Although she thought about going to the police, S.S. decided to continue to drive home.
When she arrived home, the black car continued down the street. Thi...
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