Thompson v. State, No. 126, September Term, 2008 (Md. App. 2/17/2010)
| Decision Date | 17 February 2010 |
| Docket Number | No. 126, September Term, 2008.,126, September Term, 2008. |
| Parties | KARL LYMONT THOMPSON, v. STATE OF MARYLAND. |
| Court | Court of Special Appeals of Maryland |
Opinion by Murphy, J.
In the Circuit Court for Baltimore City, a jury convicted Karl Lymont Thompson, Petitioner, of second-degree rape and related offenses. The State's evidence, which included the victim's testimony, was sufficient to establish that Petitioner committed the rape in 1986 and committed a third-degree sex offense in 1983. Petitioner does not argue to the contrary. He does argue, however, that he is entitled to a new trial. After the Court of Special Appeals affirmed Petitioner's convictions in Thompson v. State, 181 Md. App. 74, 955 A.2d 802 (2008), he filed a petition for writ of certiorari in which he presented this Court with two questions:
I. MAY EVIDENCE OF THE [PETITIONER'S] UNCHARGED JUVENILE CONDUCT BE ADMITTED IN A CRIMINAL PROSECUTION GIVEN THAT JUVENILE ADJUDICATIONS AND THE EVIDENCE THEREIN ARE INADMISSIBLE?
II. DOES AMENDING THE INDICTMENT TO CHARGE THAT A CRIME OCCURRED DURING A DIFFERENT TIME-FRAME AND AT A DIFFERENT LOCATION CHANGE THE CHARACTER OF THE SEXUAL OFFENSE WHEN MULTIPLE OFFENSES ARE ALLEGED?
We granted the petition. 406 Md. 744, 962 A.d 371 (2008). For the reasons that follow, we answer "yes" to the first question and "no" to the second. We shall therefore affirm the judgment of the Court of Special Appeals.
Background
The record shows that Petitioner was 40 years of age when the conduct at issue was reported to a law enforcement officer. The Court of Special Appeals provided the following factual background On May 10, 2005, [the victim] 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, until 1986, when she was thirteen, she had been sexually abused by her uncle, [Petitioner], on numerous occasions. 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.
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At trial, the court permitted [the victim] 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 [the victim] 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 [the victim] 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 [the victim] 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 [the victim] was thirteen and was staying at the Goodnow Road apartment of appellant, who was then twenty-two.
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With respect to the 1986 incident, [the victim] 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. [The victim] 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.
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Over appellant's objection, the circuit court permitted [the victim] 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." [The victim] 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.
Thompson v. State, 181 Md. App. 73, 78-81, 955 A.2d 802, 806-807 (2008). (Footnotes omitted).
Discussion
Petitioner argues that he is entitled to a new trial on the ground that the Circuit Court erred in admitting into evidence the victim's testimony about the "uncharged 1978 incident, which occurred when [Petitioner] was 14 years old." The Circuit Court ruled that evidence of the 1978 incident was admissible under Md. Rule 5-404(b), which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.
It is clear that the ruling at issue did not violate Md. Rule 5-404(b), which codified the "sexual propensity" exception to the general rule excluding "other crimes" evidence. As this Court stated in Vogel v. State, 315 Md. 458, 554 A.2d 1231 (1989), the "sexual propensity" exception is applicable to evidence of "prior illicit sexual acts [which] are similar to the offense for which the accused is being tried and involve the same victim." Id. at 466, 554 A.2d at 1234. Before Md. Rule 5-404(b) was adopted, this Court stated:
The primary policy consideration underlying the rule against other crimes evidence "is that this type of evidence will prejudice the jury against the accused because of the jury's tendency to infer that the accused is a `bad man' who should be punished regardless of his guilt of the charged crime, or to infer that he committed the charged crime due to a criminal disposition." Yet, in the area of sex crimes, particularly child molestation, "courts have been likely to admit proof of prior acts to show a party's conformity with past conduct." Professor McLain suggests that this relaxation of the general prohibition is "probably because the character evidence is believed to have greater probative value in those circumstances." In sex crimes cases the special relevance of the other crimes evidence that may be admissible is a criminal propensity particularized to similar sex crimes perpetrated on the same victim.
Thus, in a sex offense prosecution, when the State offers evidence of prior sexual criminal acts of the same type by the accused against the same victim, the law of evidence already has concluded that, in general, the probative value, as substantive evidence that the defendant committed the crime charged, outweighs the inherent prejudicial effect. The discretion exercised by the trial judge in weighing unfair prejudice against probative value is concerned with special features in the particular case.
Acuna v. State, 332 Md. 65, 75, 629 A.2d 1233, 1238 (1993) (Citations omitted). The record shows that the Circuit Court (1) was not clearly erroneous in finding that the sexual offenses committed by Petitioner against the very same victim in 1978 had been proven by "clear and convincing" evidence, and had "special" probative value, and (2) did not abuse its discretion in admitting that evidence on the ground that its probative value outweighed the danger of unfair "bad actor" prejudice against Petitioner.
Petitioner argues that Section 3-8A-23 of the Courts and Judicial Proceedings Article (CJ § 3-8A-23) prohibits the State from introducing evidence of "criminal acts,1 or wrongs" that were committed by an adult defendant when he or she was a juvenile. That statute, in pertinent part, provides:
§ 3-8A-23. Effect of proceedings under [the Juvenile Causes Act] subtitle.
(b) Adjudication and disposition not admissible as evidence.
An adjudication and disposition of a child pursuant to this subtitle are not admissible as evidence against the child:
(1) In any criminal proceeding prior to conviction; or
(2) In any adjudicatory hearing on a petition alleging delinquency; or
(3) In any civil proceeding not conducted under this subtitle.
(c) Evidence given in proceeding under this subtitle inadmissible in criminal proceeding. Evidence given in a proceeding under this subtitle is not admissible against the child in any other proceeding in another court, except in a criminal proceeding where the child is charged with perjury and the evidence is relevant to that charge and is otherwise admissible.
According to Petitioner, because Md. Rule 5-404(b) must be read in light of the policy underlying the Juvenile Causes Act, evidence of unadjudicated juvenile acts allegedly committed by an adult defendant is inadmissible as a matter of law in subsequent criminal proceedings. Trial judges do not...
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