Thompson v. State

• Decision Date: 03 September 2008
• Docket Number: No. 1222, Sept. Term, 2006.,1222, Sept. Term, 2006.
• Parties: Karl L. THOMPSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

955 A.2d 802

181 Md. App. 74

Karl L. THOMPSON v. STATE of Maryland.

No. 1222, Sept. Term, 2006.

Court of Special Appeals of Maryland.

September 3, 2008.

Meaghan McLaine, Washington, D.C. (Nancy S. Forster, Public Defender, on brief), for appellant.

Robert Taylor (Douglas F. Gansler, Atty. Gen., on brief), for appellee.

Panel: KRAUSER, C.J., BARBERA and JAMES A. KENNEY, III, (retired, specially assigned), JJ.

KRAUSER, C.J.

Appellant Karl Lymont Thompson was accused by his adult niece of having sexually assaulted her on five separate occasions when she was between the ages of five and thirteen and he was between the ages of fourteen and twenty-two. Because appellant was a minor when the first assault occurred, he was not charged with that offense but was charged with the others. Tried by a jury in the Circuit Court for Baltimore City, appellant was convicted of one count of second-degree rape, and two counts of third-degree sex offense, fourth-degree sex offense, and second-degree assault.

On appeal, he presents four issues:

I. Whether the circuit court erred in admitting uncharged juvenile conduct as other crimes evidence under Rule 5-404(b).

II. Whether the circuit court abused its discretion in admitting a photograph of the victim when she was ten years old.

III. Whether the circuit court erred in amending the indictment to change the date and location of the conduct charged.

IV. Whether gaps in the trial transcript deprive appellant of meaningful appellate review.

Finding no error, we shall affirm.

BACKGROUND

On May 10, 2005, Kassandra Timm, then thirty-one years of age and a resident of San Diego, California, spoke by telephone with Detective Edward Scott Jones of the Baltimore City Police Department, informing him that, beginning in 1978, when she was approximately five years old,¹ until 1986, when she was thirteen, she had been sexually abused by her uncle, appellant Thompson, on numerous occasions.² She stated that she had not previously reported any of these incidents because she had been told by a mental health counselor that "it was too late" to do so. After that telephone conversation, Detective Jones arranged for Ms. Timm to be interviewed in person by Detective Phil Worts of the San Diego Police Department.

When Ms. Timm met with Detective Worts she told him that, as a child, she would occasionally stay at her grandparents' home during summer vacations and school holidays. Her grandparents first lived on Lynview Avenue in Baltimore City, with their son, appellant Thompson, but, in 1984, moved with him to a new house in Hampstead, Maryland. She informed the detective that at both residences she was sexually abused by appellant.

TRIAL

At trial, the court permitted Ms. Timm to testify about five specific instances of sexual abuse. The first of the five incidents occurred in the summer of 1978, at the Lynview home, when Ms. Timm was "approximately five" years old and appellant was fourteen years old. Because of appellant's juvenile status at that time, the State never charged appellant with any crimes associated with this incident. The second incident took place during a school vacation in 1983, when Ms. Timm was ten years old and appellant was nineteen and an adult. The third and fourth incidents happened during the summers of 1984 and 1985 at her grandparents' Hampstead home, when Ms. Timm was about eleven years of age and appellant was twenty. The charges stemming from these incidents were dismissed during trial for lack of jurisdiction. The fifth incident occurred in November 1986, when Ms. Timm was thirteen and was staying at the Goodnow Road apartment of appellant, who was then twenty-two.

Appellant was thereafter convicted of the charges stemming from the second and fifth incidents, which occurred in 1983 and 1986, respectively, and which we shall hereafter refer to by those dates.

The 1983 and 1986 Incidents

With respect to the 1983 incident, Ms. Timm testified:

My mother and I drove to Maryland ... to visit. The whole family was there. I remember a very full house ... we slept in [appellant's] room.... And there were a lot of other people in the room. We were all sleeping pretty much wherever there was floor space and I was actually sleeping next to my mother.

And it was lights out. Everyone was going to sleep and [appellant] kept saying my mother's name, Linda, are you asleep? Are you asleep yet? And he kept saying this. And it was like funny because everyone was in the room and [] he kept saying Linda, are you asleep yet? Linda, are you asleep yet? And when she stopped answer[ing] he came and he, he touched me with his hands between my legs. He molested me.... I mean he was touching me in my vagina with his hands. He was inserting his fingers between my legs.

With respect to the 1986 incident, Ms. Timm testified that it occurred while she was visiting appellant at his apartment on Goodnow Road in Baltimore City, during her Thanksgiving school break. Appellant was then living at that address with his girlfriend, Stephanie Perry.

Ms. Timm recalled that one evening, before appellant left for work, he provided her with a shirt to sleep in and told her she could share a bed with Ms. Perry. She then recounted how later that night, when appellant returned home, he "got into bed" with her and Ms. Perry and how she later awoke to find "his penis inside of [her]," while Ms. Perry slept.

The Uncharged 1978 Incident

Over appellant's objection, the circuit court permitted Ms. Timm to testify that she had been sexually abused by appellant as early as 1978, at her grandparents' Lynview home, when she was "[a]pproximately five" and appellant was fourteen years old. Although appellant was never charged, either as a juvenile or an adult, with any offenses stemming from this incident, the court ruled that such testimony was admissible under Maryland Rule 5-404(b). It reasoned that because "the ... testimony would involve acts by the same Defendant against the same victim ... and the acts [were] of the [same] general nature," the evidence was admissible as proof of "motive, opportunity, intent, common scheme, plan and absence of mistake or accident." Ms. Timm then testified as follows:

I woke up to [appellant] touching me between my legs with his hands and with his penis. It hurt. I started to whimper a little bit and I said to him that I need to go to the bathroom. I didn't need to go to the bathroom. I just wanted to remove myself from the room. I went into the [] bathroom and ... s[a]t on the toilet. I remember ... my feet didn't touch the floor.

And I left the bathroom, [] I went [] into my aunt's room ... a different bedroom and I just laid on her floor. And then he came into the room after and asked why I didn't come back. I didn't answer and he climbed into my aunt's bed....

The Dismissed 1984 and 1985 Incidents

Ms. Timm was also allowed to testify about two incidents, the charges for which had been dismissed for lack of jurisdiction, earlier in the trial, because the purported offenses occurred in Hampstead, Maryland, and not in Baltimore City. The two incidents took place in the summers of 1984 and 1985 at her grandparents' Hampstead home, when she was between eleven and twelve years old and appellant was between twenty and twenty-one. She remembered:

We [she and appellant] were in the basement. There was someone else there, a child I believe, but I don't recall who it was. [Appellant] carried me up the stairs from the basement to a bedroom .... My grandmother was not home, nor was my grandfather.

And he laid me on the bed of the room that we went into. He was carrying me like this [indicating]. And he removed my clothes and proceeded to get on top of me ... and tried to put his penis inside of me. And he tried for a while and I just laid there. It didn't happen. ... [H]is penis was touching my vagina but it didn't happen. It was hurting me. It wasn't going, it didn't happen. And then he stopped.

And the next day, he proceeded in the basement again. We were on the floor. There wasn't a bed down there. There was a sofa and floor space [] in the basement[.][A]gain, he removed my clothing. He began to perform oral sex on me and he used his fingers. Then, he got on top of me and he proceeded to insert this penis inside of me.... [W]hile he was inside of me, he asked me if it felt good. I didn't answer. When he was done doing that, he again began to ... perform oral sex on me. It felt like eternity. It felt like forever. Then he picked me up and put me onto the sofa and continued to [] perform oral sex on me. And then eventually he stopped.

Following Ms. Timm's testimony, the State offered and the court admitted, over appellant's objection, a school photograph of Ms. Timm when she was approximately ten years old. Before resting, the State presented the testimony of Ms. Perry, who confirmed that Ms. Timm had visited the Goodnow Road apartment that she shared with appellant.

Amendment of Indictment

By the close of the State's case, it was clear from the testimony presented that the 1986 incident had taken place during Ms. Timm's Thanksgiving holiday at appellant's Goodnow Road apartment and not between May and August at his parents' Lynview Avenue home, as alleged in the indictment. After finding that appellant's counsel was in fact aware of this discrepancy before trial commenced, the circuit court, sua sponte, amended the indictment to reflect that the 1986 incident occurred in November at the Goodnow Road address.

Verdict

After the court acquitted appellant of a number of charges that it determined were either duplicative or unsupported by the evidence presented, the case went to the jury. The jury found appellant guilty of having committed, in 1983, at the Lynview home, third-degree and fourth-degree sexual offenses, and of having committed, in 1986, at the Goodnow Road apartment, second-degree rape, third-degree and fourth-degree sexual offenses, and second-degree...