Zaal v. State

• Decision Date: 01 September 1990
• Docket Number: No. 362,362
• Parties: Iwan ZAAL v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 430

85 Md.App. 430

584 A.2d 119

Iwan ZAAL v. STATE of Maryland.

No. 362, Sept. Term, 1990.

Court of Special Appeals of Maryland.

Jan. 18, 1991.

Michael J. Moran, Assigned Public Defender, Towson, for appellant

Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Andrew L. Sonner, State's Atty. for Montgomery County, Rockville, on brief), for appellee.

Submitted before BISHOP, ALPERT and BLOOM, JJ.

ALPERT, Judge.

We are called upon for the first time to decide whether a criminal defendant charged with child sexual abuse is entitled, pursuant to COMAR 13A.08.02.20, ¹ to inspect the child's school records. Iwan Zaal, appellant, appeals to us from a conviction of one count of child abuse that followed a jury trial in the Circuit Court for Montgomery County (the Hon. Peter Messitte, presiding).

FACTS

The victim was born on July 27, 1977; she was twelve years old when this incident occurred. At trial, the victim testified that she was home alone when appellant, her grandfather, arrived on March 30, 1989, to take her for an outing. Appellant and the victim previously planned to go to the zoo together. When appellant arrived, he told her that he could not take her to the zoo because he had to work. He proposed instead that they go to the movies and out to lunch. The victim telephoned her mother at work to ask permission to go to the movies. Her mother gave her permission to do so.

Appellant and the victim returned to her home at about 3:30 p.m. that day. The victim changed from a skirt into a pair of oversized shorts. She went into the living room and sat on the couch next to appellant. At that point, appellant started talking about prior sexual encounters that he had had. Appellant then put his hand on the uppermost part of the victim's thigh. The victim, in an attempt to change the The detective who investigated the incident testified at trial. Appellant stated that he was born on April 19, 1929. Appellant told the detective that the victim took his hand, placed it between her legs, and said, "I did it for my daddy." Later, she touched him and said "Now my father can get you."

                subject, asked appellant to come into her room so that she could show him what she had bought with the $20.00 which he had given her because of her good report card.   Appellant laid down on the victim's bed and pulled her on top of him.   When she felt something go into her vagina, she jumped up, went back into the living room, and sat on the couch.   Appellant sat down beside her and touched the victim's vagina with his index finger for about two minutes.   He also took the victim's hand and placed it on his penis.   The victim jumped up, told appellant that he had to leave, and opened [584 A.2d 121] the door for him to do so.   Once appellant had gone, the victim telephoned her mother at work, waiting until her mother came home to tell her everything.   Her mother then called the police
                

Appellant's brother, Phillip, testified at trial on appellant's behalf. Phillip described the nature of the relationship that existed between appellant and appellant's son, the victim's father. Phillip stated that the victim's father visited Phillip at his place of employment and told Phillip that he was "going to get [appellant] one way or another."

PROCEEDINGS

Before trial, appellant subpoenaed the victim's school records from the Montgomery County Board of Education (the Board). Relying on COMAR 13A.08.02.20B, the Board responded by filing a motion for a protective order. At the hearing on the motion, appellant argued that the school records were integral to an effective cross-examination of the victim, i.e., to demonstrating the victim's credibility as a witness by exploring motivation, bias, and veracity. Appellant proffered that the victim attended a "special classroom" because of an "emotional disturbance," and suggested that this was an area to be explored because there could be "a physical basis that would relate to her capacity to observe and relate," or "a mental deficiency leading to an inability to control actions." Further, appellant indicated that "extreme antagonism had existed for a number of years between himself and the victim's father." Thus, if the victim were aware of that hostility, it could have biased her or even have caused her to fabricate the incident. After an in camera review of the school records, the Circuit Court for Montgomery County denied appellant access to the records because the court found nothing in the record that would be admissible for impeachment purposes. As a result, the court concluded that the victim's privacy interests weighed against disclosure of the records.

At the end of the trial, a jury convicted appellant of one count of child abuse. The court declared a mistrial on the other counts of third degree sexual offense because the jury was unable to reach a unanimous verdict. On February 23, 1990, the court sentenced appellant to eighteen months in prison, all but one year suspended, with a two-year probation period that was to begin upon appellant's release. Appellant filed a notice of appeal on March 5, 1990 and asks the following questions:

I. Was the evidence legally sufficient to permit any rational trier of fact to find that appellant had the permanent or temporary care, custody, or responsibility for supervision of the victim?

II. Did the trial court commit reversible error when it granted the Board of Education's motion for a protective order, thus denying appellant access to the victim's school records?

I.

Appellant contends that there was insufficient evidence to support his conviction of child abuse.

When an appellate court reviews the sufficiency of the evidence to support a criminal conviction, the standard that it must apply is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979); Tichnell v. State, 287 Md. 695, 717, 415 A.2d 830 (1980). The standard does not require a court to " 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' " Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89 (emphasis in original) (citation omitted); Tichnell, 287 Md. at 717, 415 A.2d 830. Rather, the appellate court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 (emphasis in original); Tichnell, 287 Md. at 717, 415 A.2d 830. The standard is the same whether the evidence is direct or circumstantial. Wilson v. State, 319 Md. 530, 535-37, 573 A.2d 831 (1990).

Article 27, section 35A(b) states that "[a] parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a child who causes abuse to the child is guilty of a felony and on conviction is subject to imprisonment in the penitentiary not exceeding 15 years." Md.Ann.Code art. 27, § 35A(b) (1987 & Supp.1990). Appellant argues that there was insufficient evidence to support the requirement that he have "permanent or temporary care or custody or responsibility for supervision" of his granddaughter.

The phrase "permanent or temporary care or custody" encompasses all persons who stand in loco parentis to a child, i.e., one who intentionally assumes the parental status and discharges parental duties, not just those who have custody by judicial decree. Pope v. State, 284 Md. 309, 321-23, 396 A.2d 1054 (1979). The Court of Appeals has noted, however, that the phrase is not synonymous with "responsibility for the supervision of," because the legislature added the latter provision three years after it had enacted the former into law. Id. at 322, 396 A.2d 1054. "A person may have the responsibility for the supervision of a minor child in the contemplation of § 35A although not standing in loco parentis to that child." Id. at 323, 396 A.2d 1054. It is

self-evident that responsibility for supervision of a minor child may be obtained only upon the mutual consent, expressed or implied, by the one legally charged with the care of the child and by the one assuming the responsibility.

Id. "[T]he existence of the requisite responsibility is a question of fact for the jury." Newman v. State, 65 Md.App. 85, 99, 499 A.2d 492 (1985).

We hold that the evidence in this case, when viewed in the light most favorable to the State, was sufficient for the jury to conclude beyond a reasonable doubt that appellant had assumed responsibility for the supervision of the victim. The victim, a twelve-year-old girl, was at home alone while her mother was at work. The victim called her mother for permission to go to the movies and out to lunch when the previously arranged--and presumably, previously approved--plan for appellant and the victim to visit the zoo did not work out. The victim's mother subsequently granted the victim permission to accompany appellant. A jury might reasonably infer that the victim's mother impliedly agreed to give responsibility for the victim to appellant when she gave the victim permission to accompany him and that appellant accepted that responsibility when he took the victim from her home. We hold that the record evidence is sufficient to reasonably support a finding of guilt beyond a reasonable doubt.

II.

Appellant contends that the trial court erred when it granted the Board's motion for a protective order. Appellant argues that by denying the motion, the court violated his rights under the federal and state constitutions. Specifically, appellant claims that the trial court denied him his right to confront his accusers, his right to compulsory process, his right to effective assistance of counsel, and his right to due process.

In State v. Runge, 317 Md. 613, 614, 566...