Tapscott v. State

• Decision Date: 01 September 1994
• Docket Number: No. 1323,1323
• Citation: 106 Md.App. 109,664 A.2d 42
• Parties: Robert Allan TAPSCOTT v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 109

106 Md.App. 109

664 A.2d 42

Robert Allan TAPSCOTT v. STATE of Maryland.

No. 1323, Sept. Term, 1994.

Court of Special Appeals of Maryland.

Aug. 31, 1995.

Barry H. Helfand, Rockville, for appellant.

Diane E. Keller, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Alexander Williams, State's Attorney for Prince George's County, Upper Marlboro, on the brief), for appellee.

Argued before WILNER, C.J., ALPERT, J., and KATHLEEN O'FERRALL FRIEDMAN, Judge, Specially Assigned.

KATHLEEN O'FERRALL FRIEDMAN, Judge, Specially Assigned.

Appellant, Robert Allan Tapscott, appeals from a jury verdict in the Circuit Court for Prince George's County convicting him of four related criminal charges. The jury found appellant guilty of two counts of child abuse and two counts of incest arising out of two separate incidents involving the same victim. The court sentenced him to concurrent five-year terms on the first three counts, suspending all but one year in favor of three years probation. The court merged the conviction on one of the incest counts.

On October 8, 1993, appellant's counsel entered his appearance, and on November 4, 1993, in an omnibus motion, appellant's counsel made a demand for a speedy trial. The court set the trial for February 1, 1994. ¹ There were four continuances. The first one, granted February 1, 1994, was at the request of appellant. On the next trial date, February 28, 1994, the results of DNA testing, which were necessary to prove the relationship between appellant and the complaining witness, were not complete. As a result, the State requested a continuance beyond March 30, 1994, the 180-day time limit imposed by Md.Ann.Code, art. 27, § 591 (1992) and Md. Rule 4-271. State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979). The administrative judge for Prince George's County, reluctant to extend beyond the deadline unless the analysis could not be completed on time, denied the request, but set a new trial date for March 16, 1994. On the next trial date, the State informed the administrative judge that the analysis would not be submitted until March 28, 1994 and again asked for a continuance. Upon the administrative judge's finding of "good cause", he granted the continuance and set a new trial date for April 19, 1994, 20 days beyond the 180 day limit.

On April 19, 1994, the State informed the court that appellant had demanded additional information which the State needed more time to supply. Appellant asked the court to exclude the DNA evidence. In order to allow the defense to obtain the material, the trial court granted the fourth continuance to May 9, 1994, despite defense counsel's objection. Each time the court continued the case, defense counsel refused to consent under State v. Hicks. Trial began May 9, 1994.

On the first day of trial and before it began, appellant made four oral motions: 1) a motion to dismiss the four counts of the indictment on the grounds that the State selectively prosecuted appellant; 2) a motion to suppress a tape recorded conversation between the victim and the appellant; 3) a motion to dismiss the first and second counts of the indictment because they did not state the age of the victim of the alleged child abuse; and 4) a motion to dismiss the third and fourth counts for the reason that they did not specify the relationship between the alleged victim and appellant. The trial court denied all four motions.

Appellant presents nine contentions, which are reordered and restated as follows:

I. Was appellant denied a speedy trial?

II. Must an indictment charging child abuse allege the specific age of the child?

III. Must an indictment charging incest allege a specific degree of consanguinity?

IV. Did the trial court err by admitting testimony of the DNA expert?

V. Did the trial court properly control the scope of cross-examination?

VI. Did the trial court err in admitting the tape recorded conversation between the appellant and the complaining witness?

VII. Was there sufficient evidence to support the convictions?

VIII. Did the trial judge amend the two child abuse indictments through improper jury instruction?

IX. Was the appellant the target of selective prosecution and a victim of unlawful discrimination?

We shall affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

The Evidence

Through the testimony of the victim, K.C., the State showed that, between June and September, 1991, appellant had sexual intercourse with K.C. and that he performed oral sex on her on two separate occasions: one at his home and another in a hotel room. At the time, she was 17 1/2 years old ² and appellant was 37 years old.

The State presented evidence that appellant and K.C.'s biological mother, G.R., had the same father by blood, making them half-siblings. Thus K.C. is appellant's half niece. G.R. testified that for several years, when she was a young child, she lived in Washington, D.C. with her mother and her father, James Robert Tapscott. At some point, her parents separated, and she had no further contact with her father until 1978, when, married and living in New York, she located him in Edgewood, Maryland.

According to G.R., when her two daughters were fourteen years old and six years old, ³ she relocated from New York to Gaithersburg, Maryland to be near her father and his family. Appellant, by this time a grown man living separate from his father in the Gaithersburg area, met G.R. and her children. He helped her and the children move and thereafter, they developed what G.R. described as a "very strong relationship." G.R. stated that their "Uncle Sonny" spent a lot of time with the girls and that they looked to him for advice. K.C. testified that as she got older, she saw him "once, twice a month" and that "he was there for us if we needed him."

Two experts' testimony established the blood relationship. Terry Houtz, Genetic Testing Manager with the Baltimore RH Typing Laboratory, qualified as an expert "in the area of blood analysis, kinship analysis, and HLA testing." ⁴ Based on blood testing of G.R. and appellant, Houtz opined that, to a reasonable degree of scientific certainty, it was more likely than not that appellant and G.R. were related. Houtz testified that they shared certain genetic traits or genetic similarities and that the results were consistent with their being half-siblings.

Francis Chiafari, a molecular geneticist with the Baltimore RH Typing Laboratory, testified as an expert "in the area of DNA testing, blood testing and typing for the purpose of determining relationships between parties." He stated that it was "extremely likely that Robert Tapscott, Junior, is a sibling of [G.R.]." He quantified the relationship probability as 99.86%.

According to the State's version of the case, the first sexual encounter between K.C. and appellant took place during June 1991, in appellant's home. K.C.'s mother gave her approval for appellant to pick up K.C. after school. K.C. was to spend the night at his house so that he could take her to a job interview that he had arranged for her the next day. K.C. testified that, after picking her up, appellant took her to a FOP lodge where they both drank heavily. They later went to his house where they swam in his pool, drank more beer, and watched television. After both fell asleep on the sofa, K.C. awoke before sunrise and went to appellant's bedroom. Appellant tucked her into bed and began to leave, but when K.C. invited him to get in bed with her, he did. They both fell asleep. She awoke to appellant rubbing her shoulders and back, which led to sexual intercourse and oral sex performed by appellant on K.C. At trial, appellant denied having sexual intercourse with K.C. but admitted to K.C. performing oral sex on him.

K.C. testified about the events leading to the second incident which occurred in September 1991 in a hotel room. Upset, confused and crying about her boyfriend leaving for college, she called appellant at the home of one of his friends. She then drove to his friend's house to see appellant. There she accepted his offer to go with him to his part-time job at a Greenbelt hotel. K.C. testified that appellant arranged to meet her in one of the rooms where they again engaged in sexual intercourse and oral sex. At trial, although admitting that he obtained the room and met her there, appellant denied that any sexual acts occurred.

The State's case included evidence by way of a recorded telephone conversation between K.C. and appellant. At the suggestion of the police and with equipment supplied by them, K.C. initiated this telephone conversation from her residence. During this conversation, appellant acknowledged that he had "sex" with her. He said:

You said you don't blame yourself and I don't have a problem with that. I'm not, again, I don't want to accuse but both times before anything happened, not so much the first time, but the second time I mean it was discussed. It wasn't something that you know we were both totally intoxicated one took advantage of the other one, and as you said yourself I, I was under the impression that it was something between, you know, consenting adults if you will.

We will recount other facts as necessary when we discuss appellant's separate contentions.

I Speedy Trial

Appellant contends that the trial court should have dismissed the charges against him based on statutory and constitutional speedy trial violations.

Upon receipt of the DNA results, defense counsel requested a report explaining how the tests were completed. When the court called the case for trial on April 19, 1994, the State informed the trial judge that the defense had made a request for DNA evidence pursuant to Md.Code Ann., Cts. & Jud.Proc § 10-915 (1992 Repl.Vol.), but that the RH Typing Laboratory did not have enough time to comply with the request. Appellant requested that the DNA results be excluded...