Tate v. State

Decision Date27 September 2007
Docket NumberNo. 0284, Sept. Term, 2006.,0284, Sept. Term, 2006.
Citation933 A.2d 447,176 Md. App. 365
PartiesDarren Joseph TATE v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Celia A. Davis (Nancy A. Forster, Public Defender, on brief), for appellant.

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

Panel MURPHY, C.J., LAWRENCE F. RODOWSKY (retired, specially assigned) and CHARLES E. MOYLAN, JR., (retired, specially assigned), JJ.

MOYLAN, J.

The primary subject of this appeal is the legal effect of inconsistent verdicts, especially jury verdicts consisting of a conviction and an acquittal. The appellant, Darren Joseph Tate, was convicted by a Prince George's County jury, presided over by Judge Graydon S. McKee, III, of the sexual abuse of his 16-year-old stepdaughter. In this appeal he raises the two contentions

1. that Judge McKee, in two respects, erroneously failed to take all necessary measures to preclude the jury from returning allegedly inconsistent verdicts; and

2. that Judge McKee erroneously restricted his cross-examination of the complaining witness, Koree Buffington.

The Alleged Inconsistency

The appellant was indicted on three charges: 1) sexual child abuse, 2) a sexual offense in the fourth degree, and 3) second-degree assault. The jury acquitted the appellant of second-degree assault, and that verdict is not a factor on this appeal. The jury also acquitted the appellant of the fourth-degree sexual offense, and that verdict is a big factor. The appellant contends that that acquittal was logically inconsistent with the jury's having convicted him of sexual child abuse of his stepdaughter because both charges were based on allegedly identical conduct.

The appellant concedes, at the outset, that logically inconsistent verdicts by a jury, unlike logically inconsistent verdicts by a judge sitting without a jury, are not in themselves a basis for reversing a conviction. Hoffert v. State, 319 Md. 377, 383-85, 572 A.2d 536 (1990); Shell v. State, 307 Md. 46, 52-58, 512 A.2d 358 (1986); Ford v. State, 274 Md. 546, 551-56, 337 A.2d 81 (1975); Leet v. State, 203 Md. 285, 294, 100 A.2d 789 (1953); Price v. State, 172 Md.App. 363, 388-90, 915 A.2d 432 (2007); Hudson v. State, 152 Md.App. 488, 513-16, 832 A.2d 834, cert. denied, 378 Md. 618, 837 A.2d 928 (2003).

Unable to attack the alleged inconsistency directly, the appellant attempts to do so indirectly. He contends initially that Judge McKee failed to take adequate steps to forestall the inconsistent verdicts when he denied the appellant's request to rearrange the verdict sheet so as to require that the jury first reach a verdict on the fourth-degree sexual offense with the attendant instruction that if they reached a not guilty verdict on that charge, they would not even consider the sexual child abuse charge.

The appellant's second indirect attack is on Judge McKee's jury instructions. Although the appellant made no such request at the time, he now contends that Judge McKee was nonetheless in error for failing, sua sponte, to tell the jury:

You may not find the Defendant guilty of sexual abuse unless you are convinced beyond a reasonable doubt that he is guilty of committing a sexual offense in the fourth degree.

Factual Background

The victim, Koree Buffington, had just turned 16 years of age when the act of alleged child abuse took place. She was 17 years old at the time of trial. The appellant is her stepfather, with whom Koree had been living as part of the same household. The household consisted of Koree, her mother, the appellant, Koree's grandmother, Koree's sister, a cousin, and a nephew. According to Koree herself, she and the appellant had always had a "close" relationship with each other. She described how they would regularly "hang out and just ride to school together" and how "they would joke and play-fight with one another."

In her trial testimony, Koree described the abusive incident. On a day several days after Koree's 16th birthday, the appellant knocked on Koree's bedroom door and she told him to come in. "After he came in, I was like sitting on the floor and he then pulled me up and put my hands around him, and he started touching me." She testified that the appellant placed her hands around his neck and then "he like took my hands down, and I hugged him like around where his waist was." Koree's critical testimony was that while the appellant was holding her, he put his hands inside her underwear. "He started rubbing outside my vagina." After that, the appellant "just started hugging me, and told me he loved me, and left."1

Koree believed that while this incident was taking place, her mother was in her bathroom and her grandmother was in her room in the basement. After the appellant left her room, Koree called a girlfriend and told her what had occurred. She did not, however, tell her mother or anyone else in the household "because nobody would believe me." Koree elaborated that while she had a "playful relationship" with the appellant, it was "not O.K. for him to kiss her." She added that she did not believe that the appellant was trying to hurt her.

This entire incident came to the attention of the authorities through the medium of Khadijah Tribble. Ms. Tribble worked at the Covenant House in Washington, D.C., where Koree participated in an after-school program. The version of the event that Koree recounted to Ms. Tribble differed, at least in detail, from the version Koree testified to at trial. She told Ms. Tribble that "she was asleep when her step-father came into the room, and that he got on top of her and tried to kiss her. She said that her clothes were on, and that he tried to fondle her, or did fondle her." After hearing this from Koree, Ms. Tribble, on her own initiative, reported it to the Prince George's County authorities.

Ms. Tribble went further and actually spoke with the appellant in an effort "to try to intervene; [to] provide additional services and resources for them." According to Ms. Tribble, the appellant neither admitted nor denied the accusation. According to her testimony, "[H]e did share the possibility [that] if there's anything he's guilty of, its playing rough with his daughters or sometimes not knowing when enough is enough."

The third and final State's witness was Detective Wayne Pyles, who reported the responses of the appellant when confronted with the accusation. In a written statement, the appellant averred that he had no recollection of ever having touched his stepdaughter's breast or vagina. The appellant added a message to Koree in which he said:

Because what you said happened, I'm so sorry. I love you. Daren.

When Detective Pyles then asked the appellant if he was "apologizing to Koree because you fondled her breasts and vagina?," the appellant declined to answer because, he told the detective, "the word `fondled' implied a sexual intent." The appellant told Detective Pyles that "Koree was not lying," but that he steadfastly denied doing "anything of a sexual connotation."

The appellant took the stand in his own defense. He denied having touched Koree outside of her vagina or in any sexual manner. He explained:

My relationship with Koree has been very, well, inappropriate. I was not acting like an adult. I was acting more like a peer, and I guess I acted like a peer to try to be accepted [by] a step-daughter.

The appellant elaborated that he knew that initially Koree "didn't really want me and her mother to be married," and that, in an effort to overcome that initial coolness, he made a special effort to be nice to her and to be her friend. He added that Koree was very "tomboyish" and physical and that, in interacting, the two of them would wrestle, box, and "we would touch." He did not deny touching Koree because, as he explained, "We play all the time, for me to say I have never touched her would be for me to just outright lie." He further explained that he wrote the apology to Koree after speaking with Detective Pyles "because it deeply hurt me to think that she took anything, or our playing, in any kind of sexual way." He concluded that the incident in question did not happen in the way that Koree reported it. The two of them were "just playing at the time."

Jocelyn Alexander-Tate, Koree's mother and the appellant's wife, testified for the defense. She had been married to the appellant for three years, and Koree had lived with them "off and on for two years." She testified that the relationship between the appellant and Koree typically involved "a lot of roughhousing. They were kind of like peers." The mother had never interpreted the interaction between the appellant and Koree as being sexual in any way.

Also testifying for the defense was Kiana Simmons, the appellant's 18-year-old daughter. She explained that Koree had a very different relationship with her father than she herself did. "She was real cool with him; like they played a lot, and they would joke and stuff." Ms. Simmons testified that she had never observed any behavior of a sexual nature between the two.2

The Verdicts Were Not Necessarily Inconsistent

A frequent defense to a contention based on inconsistent verdicts and one of the State's alternative defenses in this case is that the verdicts were not actually inconsistent and, on close examination, can be reconciled. The area of factual disagreement between the State and the defense is narrow. It is not nearly so much a disagreement over what happened as it is a disagreement over the significance of what happened. The gravamen of the State's case against the appellant, both for the sexual abuse of a minor pursuant to Maryland Code, Criminal Law Article, § 3-602(b), and for the fourth-degree sexual offense pursuant to § 3-308(b)(1), is Koree's testimony that the appellant put his hands in her underwear and "started rubbing outside my vagina." That is the limited factual fulcrum upon which guilt or innocence for either of the criminal...

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