State v. Westpoint

Decision Date08 May 2008
Docket NumberNo. 60 Sept.Term, 2007.,60 Sept.Term, 2007.
Citation947 A.2d 519,404 Md. 455
PartiesSTATE of Maryland v. Christopher Overbee WESTPOINT.
CourtCourt of Special Appeals of Maryland

Mary Ann Ince, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland., on brief), Baltimore, MD, for petitioner/cross-respondent.

Michael R. Malloy, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), Baltimore, MD, for respondent/cross-petitioner.

ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, JJ., and ALAN M. WILNER and DALE R. CATHELL, JJ. (Retired, specially assigned).

BATTAGLIA, Judge.

In this case we will address whether a prior conviction for a third degree sexual offense is admissible for purposes of impeachment pursuant to Rule 5-6091 of the Maryland Rules of Evidence,2 as well as whether the trial court erred in admitting other crimes, wrongs or acts evidence under Rule 5-404(b),3 specifically, that Respondent, Christopher Overbee Westpoint, the defendant below, had committed a third degree sexual offense on the same victim, similar to the acts for which he was indicted.

The State filed a Petition for Writ of Certiorari, raising the following question for our review:

Is a prior conviction for a third degree sexual offense admissible pursuant to Rule 5-609 for purposes of impeachment?

Westpoint filed a Conditional Cross-Petition, presenting us with three additional questions:

1. Did the trial Court err by admitting evidence that Respondent previously had committed a similar "other crime" on the same alleged victim and had been convicted for it?

2. Did the trial Court err by overruling Respondent's objection to its jury instruction that Respondent's guilty plea to the prior sexual offense could be used to prove his intent to commit rape and child abuse in the instant case?

3. Did the trial Court err by overruling Respondent's objection to the prosecutor's argument that the jury should believe the complainant because Detective Pyles had believed her?

We shall hold that the prior conviction for a third degree sexual offense is not admissible for purposes of impeachment. Because the issue of the admission of the other acts evidence may arise on retrial, we will address it for guidance.4

Background

Respondent, Christopher Overbee Westpoint, was indicted for various sexual offenses that allegedly occurred on March 7th, 8th, 11th and 16th, 2005.5 The victim of the alleged sexual offenses was Westpoint's twelve-year-old daughter. The charges relating to occurrences on March 7th and 8th were third degree sexual offenses in violation of Section 3-307 of the Criminal Law Article, Maryland Code (2002),6 fourth degree sexual offenses in violation of Section 3-308, and second degree assaults in violation of Section 3-203. The offenses charged related to the incident on March 11th were a third degree sexual offense, a fourth degree sexual offense, a second degree assault and sexual abuse of a minor in violation of Section 3-602. The charges related to the incident on March 16th were second degree rape in violation of Section 3-304, sexual abuse of a minor, a third degree sexual offense, a fourth degree sexual offense and a second degree assault.

Prior to trial, the State filed a motion in limine in support of the admission of other crimes, wrongs or acts evidence pursuant to Rule 5-404(b), specifically that Westpoint had committed a similar third degree sexual offense against his daughter in November of 2001, to which he pled guilty;7 the State proffered to the trial judge that it had a certified copy of the conviction. The motion was argued on the first day of the jury trial; Westpoint asserted that the other acts evidence should not be admitted because the probative value of the evidence was outweighed by its extreme and unfair prejudice. The judge reserved his decision, and after opening statements, ruled that the other crimes, wrongs or acts evidence was admissible, substantively, to prove Westpoint's intent:

[THE COURT]: Okay. The State is seeking to use evidence of a prior conviction —

[STATE]: Yes, Your Honor.

[THE COURT]: — of the Defendant for having committed a third degree sexual offense on the same complaining witness.

[STATE]: That's correct, Your Honor.

[THE COURT]: That earlier conviction was in 2001.

[STATE]: Yes.

[THE COURT]: And, normally, the evidence of other crimes cannot be used, but there is an exception, and that exception is expounded upon in the case of Antonio Donnell Oesby, O-E-S-B-Y, v. State of Maryland, decided January 4th, 2002, Court of Special Appeals, Moylan, found at 142 Maryland Appeals, Page 144. And it lists that there first must be a determination, a legal determination by the court that the evidence qualifies for admission having fallen within one of the exceptions that are recognized as having relevance to the case at bar, and one of those exceptions is intent. Here you have intent, which is an element, and you have a prior act by the same defendant on the same individual child, so there is the intent exception as it's determined by the Court.

A second step in the process has to do with whether or not the evidence of the prior bad act or prior conviction is clear and convincing, and the Court finds that the evidence is more than clear and convincing.

[COUNSEL FOR WESTPOINT]: Based on what, Your Honor?

[THE COURT]: Based upon the fact that he entered a plea of guilt to having committed the third degree sexual offense even though that plea of guilt was in an effort to avoid a more serious charge of second degree rape on that same child. I believe that must have been the earlier more serious count in entering a plea of guilt.

And the third step is the question, whether or not the probative value of the other crimes evidence outweighs its unfairly prejudicial effect. The Court believes that the other crimes evidence would outweigh the unduly prejudicial effect that it would have in this case, so I'll permit it.

At trial, Westpoint's daughter, the alleged victim, took the witness stand and testified about the incidents on March 7th and 16th, but she could not remember what, if anything, occurred on March 8th or 11th, 2005. In regard to the March 16th event, she testified regarding various of her father's actions:

[WESTPOINT'S DAUGHTER]: My father came downstairs and tapped me on my hip with his foot, and that's when I had got off. And we went upstairs and we started playing chase. We went upstairs in my room and then he laid me on my bed and he got on top of me. That's when he pulled my pants down and got on his knee off the bed and put his finger in his mouth and put his finger on my vagina, and that's when he got back on top of me and he tried to force his self in me.

Then I was over there and saying, ow. And that's when my father said, did that hurt. And he turned me on my stomach and got on me and started humping me on my stomach while I was laying on my stomach.

[STATE]: Now let's go back for a second. You say your father tried to put — now, were his pants on or off when he did this?

[WESTPOINT'S DAUGHTER]: His pants were on. He had on shorts.

[STATE]: What were you wearing?

[WESTPOINT'S DAUGHTER]: I was wearing — still in my pajamas.

[STATE]: Okay. And how did you say your father put his finger in your vagina? Were you pants on? Were your pants off?

[WESTPOINT'S DAUGHTER]: No. He pulled them down.

[STATE]: Okay. And you said he put his finger inside your vagina?

[WESTPOINT'S DAUGHTER]: Yes.

[STATE]: Okay. What did he do after that?

[WESTPOINT'S DAUGHTER]: He got back on top of me and he tried to put his penis inside of me.

[STATE]: Were his pants on or off at this point?

[WESTPOINT'S DAUGHTER]: They were on, but it was like how the boxers are made with a little hole that comes apart.

[STATE]: Okay. So you said he tried to put his penis inside?

[WESTPOINT'S DAUGHTER]: Yes.

[STATE]: Did he put it in there?

[WESTPOINT'S DAUGHTER]: A little, but not with any real penetration.

[STATE]: I'm sorry. What?

[WESTPOINT'S DAUGHTER]: Not as far as like where I lost my virginity. It wasn't all the way in.

[STATE]: But it was a little bit in?

[WESTPOINT'S DAUGHTER]: Yes.

[STATE]: You said ow?

[WESTPOINT'S DAUGHTER]: Yes, a little. He look at me and said, did that hurt. And I said, yes, and then he turned me on my stomach and he was on my back and he was humping me.

[STATE]: [Westpoint's daughter], what do you mean by humping?

[WESTPOINT'S DAUGHTER]: He had his penis on my vagina moving up and down.

The State thereafter questioned the daughter regarding what had occurred in 2001:

[STATE]: Okay. Now, [Westpoint's daughter], I'm going to ask you about an incident that occurred back in October of 2001, October, November, 2001? Do you remember that? [WESTPOINT'S DAUGHTER]: Yes.

* * *

And my mom told me to go with my aunt. And I had went down to the apartment to get some clothes and my dad had just came home from work and we were in the back room. I was getting clothes and stuff. And that's when we were watching t.v. for a minute and talking and stuff and that's when we had laid down in the bed and I was — he laid me on my stomach and got on top of me and started moving up and down.

My pants and panties were down and his boxers — well, not boxers, but his shorts and stuff, and his penis was rubbing against me and he had hurt me. So after that, I had left and I ran upstairs and told my aunt and everything and that's when she called — that's when she first called the police.

[STATE]: [Westpoint's daughter], now when you say that his penis was rubbing up against you, what part of your body was his penis rubbing on?

[WESTPOINT'S DAUGHTER]: Like around my behind and my vagina.

[STATE]: And, [Westpoint's daughter], that time, how did your pants and panties get off?

[WESTPOINT'S DAUGHTER]: He pulled them down.

The next day, after a motion for judgment of acquittal was granted regarding the counts involving March 8th and 11th, Westpoint testified. On...

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  • Allen v. State
    • United States
    • Court of Special Appeals of Maryland
    • 27 Mayo 2010
    ...that because the defendant had acted badly in the past that he is more likely to have committed the crime charged." State v. Westpoint, 404 Md. 455, 488, 947 A.2d 519 (2008) (citations omitted). There are exceptions when the evidence has "special relevance" to some contested issue and is no......
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    ...A.2d 157). To determine the admissibility of other crimes evidence, the court must engage in a three-step analysis. State v. Westpoint, 404 Md. 455, 489, 947 A.2d 519 (2008). First, the evidence must fall within one of the exceptions listed in Rule 5–404(b), or otherwise have special releva......
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