Westley v. State, No. 2474

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Opinion by Fader, C.J.
• Parties: DARRELLED WESTLEY v. STATE OF MARYLAND
• Decision Date: 02 July 2021
• Docket Number: No. 2474

DARRELLED WESTLEY
v.
STATE OF MARYLAND

No. 2474

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019
July 2, 2021

SEXUAL OFFENSES — EVIDENCE — RAPE SHIELD STATUTE — APPLICATION TO NONCONSENSUAL CONDUCT

Maryland's Rape Shield Statute, § 3-319 of the Criminal Law Article, contains two subparts. Subsection 3-319(a) is an absolute bar to the introduction of reputation or opinion evidence concerning a victim's reputation for chastity or abstinence. Subsection 3-319(b) limits the admissibility of evidence of specific instances of a victim's prior sexual conduct. Subsection 3-319(b) applies regardless of whether the victim's prior sexual conduct at issue was willing or unwilling.

SEXUAL OFFENSES — EVIDENCE — RAPE SHIELD STATUTE — EXCEPTIONS

Evidence excluded by the Rape Shield Statute may nonetheless be admissible if its exclusion would violate a criminal defendant's constitutional rights.

SEXUAL OFFENSES — CONSTITUTIONAL RIGHTS — DUE PROCESS AND CONFRONTATION CLAUSES — SEXUAL INNOCENCE INFERENCE THEORY

In Maryland, evidence of a child victim's prior sexual abuse that is excluded by the Rape Shield Statute may not be admitted to counter a presumption of sexual innocence unless: (1) the court determines that the facts of the case give rise to a presumption of the victim's sexual innocence that if unrebutted might lead a reasonable jury to conclude that the defendant committed the crime at issue; (2) the proffered evidence would rebut that presumption; and (3) the inflammatory or prejudicial nature of the evidence does not outweigh its probative value.

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Circuit Court for Wicomico County
Case No. C-22-CR-18-000440

REPORTED

Fader, C.J., Ripken, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Fader, C.J.

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In a criminal trial of a sex crime, Maryland's rape shield statute, § 3-319 of the Criminal Law Article of the Maryland Code (2021 Repl.) (the "Rape Shield Statute"), (1) precludes the introduction of evidence concerning a victim's reputation for chastity or abstinence and (2) limits the introduction of evidence concerning specific instances of a victim's prior sexual conduct to evidence that is relevant, material, not more inflammatory or prejudicial than probative, and falls within one of four categories of evidence bearing special relevance to a defendant's case. The General Assembly's purposes in limiting admissibility of such evidence were to protect sex crime victims from the psychological trauma of being unnecessarily confronted with tangential and potentially harmful evidence, to avoid improperly shifting the focus of the trial to the victim, and to thereby encourage victims to report sex crimes. In this appeal, we are called upon to determine whether the Rape Shield Statute's protections extend to a 12-year-old victim of sexual abuse so as to preclude her alleged abuser from introducing at his criminal trial evidence that the victim had suffered another incident of sexual abuse, by a different abuser, a year earlier.

Darrelled Westley, the appellant, was convicted of multiple counts of sexual abuse of a minor, other sex offenses, and assault against his wife's niece ("Victim"), who was 12 years old at the time of the relevant events.¹ Mr. Westley argues that the circuit court erred by excluding evidence of Victim's prior sexual abuse, which he contends was necessary to rebut the jury's natural presumption that Victim would not have possessed sufficient sexual

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knowledge to fabricate her allegations against him. We hold that the court neither erred nor abused its discretion in excluding the evidence because it was barred by the Rape Shield Statute and unnecessary to protect Mr. Westley's constitutional rights. In doing so, we conclude that the Rape Shield Statute's limitation on the admission of evidence of specific instances of a victim's prior sexual conduct extends to both willing and unwilling prior sexual conduct, and that the facts presented here did not raise a presumption of sexual innocence that this evidence was necessary to rebut.

Mr. Westley also contends that even if the court's decision to exclude the evidence was correct initially, the court erred by not permitting its introduction later based on the State having opened the door and pursuant to the doctrine of verbal completeness. Because we do not agree that the State opened the door or that the doctrine of verbal completeness mandated admission of the challenged evidence, we discern no error or abuse of discretion in the court's rulings excluding it.

Finally, Mr. Westley asks this Court to reverse his conviction for child abuse by a person responsible for supervising a minor because of insufficient evidence. We will hold that the evidence was sufficient for a reasonable jury to conclude beyond a reasonable doubt that Mr. Westley was a person responsible for supervising Victim. Accordingly, we will affirm all of Mr. Westley's convictions.

BACKGROUND

Victim's Stay with the Westleys

In May 2018, Victim's mother ("Mother") asked her sister, Jessica Westley, to take care of Mother's five children for two weeks that June, while Mother and her husband

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would both be incarcerated. Among the five siblings were Victim and her 11-year-old brother ("Brother"). Ms. Westley, who had cared for the children previously, discussed the request with her husband, Mr. Westley, and the couple then agreed to the two-week stay.

At the time, the Westleys were living in a small room, which one witness described as being half the size of the court's jury box, on the second floor of a boarding house in Salisbury. The room held, at various times, an air mattress, television, and dresser. The Westleys, the children, and an uncle—Ivan Conway, Ms. Westley's and Mother's brother—all slept together in the room. It was Mother's understanding that the Westleys would care for the children during this period, including taking them for free meals at local churches or by obtaining food from a local shelter pantry.

When Mother left prison after two weeks, she retrieved her children. At that time, Mr. Conway conveyed something to Mother that prompted her to contact Stephanie Fleming, a social worker at the Child Advocacy Center ("CAC") with whom the family was already familiar, and then bring Victim to speak with Ms. Fleming. The accusations Victim made in those interviews led to Mr. Westley's arrest and to the State charging him with two counts of sex abuse of a minor and one count each of second-degree rape, sex offense in the third degree, sex offense in the fourth degree, and assault in the second degree.

Trial Testimony

The evidence at trial consisted of testimony by Victim, Mother, Brother, Mr. Conway, and Ms. Fleming, as well as redacted excerpts of two recorded interviews of

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Victim conducted by Ms. Fleming. The redacted excerpts from the interviews were played for the jury and transcripts were also provided. Mr. Westley did not call any witnesses.

Victim testified that during her stay with the Westleys, she, Brother, and another sibling attended a day camp but were otherwise in the care of the Westleys. Beginning "[a] couple days after" arrival, at night while everyone else was asleep, Mr. Westley took off her clothes, touched her "butt," and used "his mouth" to touch her "private" and "boobs[.]" She also said that he used his penis to touch the "outside" of her "private," his hand to touch the "inside" and "outside" of her "private," and that sometimes the touching would occur when he followed her to the bathroom. In excerpts from the interviews with Ms. Fleming, Victim stated that the touching had occurred "[m]ore than ten" times, Mr. Westley had touched her "butt" with his penis once, and Mr. Westley's penis was brown and white "stuff was coming out" of it.

When asked who watched her children while she was in jail, Mother testified that it was "Jessica Westley and Darrelled Westley." She testified that her sister had been around the children for their entire lives, that she was familiar with caring for them, and that the children had known Mr. Westley since he and Ms. Westley married several months before their stay. Before Ms. Westley agreed that the children could stay with her and Mr. Westley, she "talked it over with her husband, so he knew about it, too." Mother expected the children to be cared for by both her sister and Mr. Westley.

Brother testified that he once saw Mr. Westley "touching on" Victim in the room while the others were sleeping. He observed Mr. Westley touching Victim's "butt" and

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"titties" while she "was kind of awoke . . . [a]nd kind of asleep." The day after he observed that conduct, Brother reported it to Mr. Conway.

Mr. Conway testified that he had slept on the floor in the same room with the Westleys and the children, and, on at least one occasion, he saw Victim go to the bathroom with Mr. Westley following shortly after. Mr. Conway described how one day after work, Brother told him about Mr. Westley's conduct with Victim. Mr. Conway then decided to stay at the residence "the entire time after that information came out because [Victim] was afraid to be alone during the day." Mr. Conway confronted Mr. Westley about the accusations but was satisfied by Mr. Westley's assurances that nothing had happened.

Victim's description of Mr. Westley's conduct varied between her trial testimony and her recorded statements to Ms. Fleming. For example, although Victim testified at trial that Mr. Westley had touched the "outside" of her "private" with his penis and described Mr. Westley touching her in the bathroom, in her interviews with Ms. Fleming the only body part she mentioned Mr. Westley touching with his penis was her "butt," and she described incidents occurring only on the bedroom floor. And at one CAC interview, but not at trial, Victim stated that Mr. Westley had put his tongue inside her vagina "[e]very night."

At the conclusion of the State's case, the court denied Mr. Westley's motion...