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Court of Appeals reverses sex-offense conviction

Maryland’s highest court on Wednesday decided the buttocks are an “intimate area,” but reversed a sex-offense conviction for lack of evidence that the man who allegedly touched a child’s backside in the toy section of the Hagerstown Goodwill store did so for his own gratification.

The case splintered the Court of Appeals, with five of the seven judges voting to reverse but only three signing on to the opinion setting forth their reasons.

In dissent, Judge Glenn T. Harrell Jr. assailed the plurality for “paying lip service” to what he called the Washington County Circuit Court jury’s reasonable conclusion that Rodney Wayne Bible, then 49, touched the 7-year-old girl’s clothed buttocks for sexual gratification. Judge Joseph F. Murphy Jr. joined Harrell’s dissent.

Even the dissenters agreed that the buttocks are an “intimate area” under Maryland law. The state’s sexual-offense statute uses the phrase “intimate area” but does not define it, Judge Sally D. Adkins wrote for the plurality.

“Community standards are not static, and we recognize that in some settings, fashion and public propriety tolerate greater exposure of the human body, including portions of the buttocks, than was permitted in the past,” Adkins wrote. “Nevertheless, we are confident that society still generally considers the buttocks to be private areas an individual would not expect to be casually touched, not even by a friend.”

The girl testified she was alone in the toy department at about 4 p.m. on Aug. 25, 2006, when Bible touched her at least twice on her behind. Returning with her mother to the family’s car, the girl saw Bible and told her mother he was “a pervert” who had touched her.

Case: Rodney Wayne Bible v. State of Maryland, CA No. 138, Sept. Term 2008. Reported. Opinion by Adkins, J (plurality). Dissent by Harrell, J. Filed Oct. 14, 2009.

Issue: Was the evidence at trial sufficient to prove beyond a reasonable doubt that a man touched a girl’s behind with the intent “to achieve sexual arousal or gratification,” as required under Maryland criminal law?

Holding: No; prosecutors presented no evidence suggesting sexual intent.

Counsel: Juan P. Reyes for petitioner; Susannah E. Prucka for respondent.

RecordFax: #9-1014-20 (27 pages).

The mother contacted police, who interviewed Bible.

Bible initially denied being at the store but later admitted he was there. He denied touching the girl.

Bible was convicted of sexual offense in the third degree, for sexual contact with a victim under 14, and in the fourth degree, for sexual contact without consent. Bible was also convicted of assault but that conviction was not part of his appeal.

The Court of Special Appeals upheld the sexual-offense convictions. The court said a rational juror could have found beyond a reasonable doubt that Bible touched the girl to achieve arousal.

Writing for the plurality Wednesday, Judge Sally D. Adkins said Bible should not have been convicted on “such slim evidence.”

Prosecutors presented “no statement by him suggesting sexual intent, no indication of his sexual arousal, no other conduct by him suggesting a sexual interest in the child,” Adkins wrote.

“When we are dealing with the charge of a sexual offense against a child, it is tempting to allow suspicion to substitute for sufficient proof, because of the offensive nature of such a crime, and our desire to protect children,” Adkins wrote. “But … the law requires that the defendant’s sexual intent be proven beyond a reasonable doubt. The state’s burden of proof is not inversely proportionate to the age of its witness.”

Chief Judge Robert M. Bell and Judge Clayton Greene Jr. joined Adkins’ opinion reversing the conviction. Judge Lynne A. Battaglia and retired Judge John C. Eldridge, sitting by special assignment, agreed that the convictions should be overturned, but did not join Adkins’ opinion nor explain why they voted in Bible’s favor.

Harrell, in dissent, said Bible was not pushing the girl to safety when he touched her backside.

“By a rational process of elimination in this context, a reasonable jury could conclude that he did so to gratify or arouse his prurient sexual interests,” Harrell wrote. “The jury did its job.”

The court’s decision drew criticism from Brian S. Kleinbord, chief of the Maryland attorney general’s criminal-appeals division.

“It was for the jury in Washington County to determine the defendant’s intent, and the evidence fully supported the jury’s verdict,” Kleinbord said.