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Opinions – 10/17/11: Maryland Court of Special Appeals

Criminal Law

Supplemental jury instructions

BOTTOM LINE: The circuit court did not err in giving a supplemental jury instruction, patterned upon the definition of consent set forth in the model second-degree rape instruction, in response to a jury question asking for clarification of the definition of consent.

CASE: Perez v. State, No. 2000, Sept. Term, 2009 (filed Sept. 29, 2011) (Judges Wright, MATRICCIANI & Sharer (retired, specially assigned)). RecordFax No. 11-0929-04, 13 pages.

FACTS: Giselle D. was the 14-year-old step-daughter of Juan Perez. At Perez’s trial on sexual offenses, Giselle D. testified that, on December 29, 2008, Giselle D.’s mother, Frances Pena, forced her to take a home drug test after finding marijuana in her bedroom. The test result was positive. Giselle’s mother threatened to give the test to police as a punishment, but never did so.

Later that evening, Perez entered the bathroom while Giselle was inside preparing for bed. He told her that he would throw away the drug test if she let him prove that she was a virgin. Perez proceeded to digitally penetrate Giselle’s vagina. Giselle became more uncomfortable and repeatedly asked Perez to stop, but he kept trying to convince her to let him continue the “test.” Finally, Giselle pulled away and exited the bathroom.

Later that evening, Perez sat beside Giselle and began asking if she and her friends would engage in sexual acts with him in exchange for money. She told him no.

The next day, Perez attempted to continue the conversation with her. Later that day, Perez again broached the subject. This time, however, he also placed his hand inside Giselle’s pajamas and touched the outside of her vagina.

At her mother’s suggestion, Giselle called the police. The police set up a recorded telephone call between Giselle and Perez in an attempt to get him to admit to the sexual contact. However, Perez made no admissions.

Detectives from the Montgomery County Police Department testified that during an interview with Perez, he admitted to digitally penetrating Giselle, explaining that he was certified in gynecology in his native country of Cuba to determine virginity from digital penetration. Perez also told the detectives that it was Giselle who placed his hand down her pants so that he could perform the “test” and prove that she was not a virgin. Perez denied touching her the next day, however, and insisted that it was Giselle who offered to have sexual intercourse with him.

At the close of the evidence, the court instructed the jury on the crime of fourth degree sexual offense as follows: “In order to convict [Perez] of fourth-degree sexual offense, the State must prove first that [he had sexual contact with Giselle [ ]; and, secondly, that the sexual … contact was made against the will and without the consent of Giselle [ ].”

The court then instructed the jury on child sexual abuse as follows: “As to child sexual abuse, child abuse is sexual molestation or exploitation of a child under 18 caused by a parent or other person who has permanent or temporary care, custody or responsibility for the supervision of that child or by any household or family member.”

During its deliberations, the jury submitted a note to the court asking the court to clarify what “sexual contact was made against the will and without consent” meant and where did exploitation or coercion fall. The court responded to the jury question: “Consent means actually agreeing to the act, rather than merely submitting as a result of threats or coercion.”

The jury ultimately found Perez guilty of fourth-degree sex offense and child sexual abuse for the events that occurred on December 29, 2008. The jury acquitted Perez on charges of fourth degree sexual offense based upon the events alleged to occur the following day.

Perez was sentenced to ten years imprisonment, with five years suspended in favor of five years of supervised probation, for the child sexual abuse conviction, which was merged with the fourth-degree sexual offense conviction for sentencing purposes.

Perez appealed to the Court of Special Appeals, which affirmed.

LAW: Rule 4–325 governs jury instructions. An “instruction” includes any “communication from the judge to the jury made after the close of the evidence.” Lansdowne v. State, 287 Md. 232, 243 (1980). “A question of ‘[w]hether to give a jury supplemental instructions in a criminal cause is within the discretion of the trial judge.’” Brogden v. State, 384 Md. 631, 640 (2005) (quoting Lovell v. State, 347 Md. 623, 657 (1997)).

In State v. Baby, 404 Md. 220 (2008), the Court of Appeals addressed a trial court’s failure to provide a supplemental jury instruction in response to a question of law posed by the jury. The jury’s question sought clarification of the effect of a victim’s post-penetration withdrawal of consent during a rape. Id. at 222.

In holding that the trial court erred by failing to give a supplemental instruction designed to clarify the jury’s confusion, the Court observed that, “a trial court must respond to a question from a deliberating jury in a way that clarifies the confusion evidenced by the query when the question involves an issue central to the case.” Id. at 263 (citing Lovell, 347 Md. at 623).

The Baby Court disagreed with the State’s argument that the jury question was unrelated to the defendant’s convictions for first and third degree sexual offense. It observed that “Lack of consent is an element common to both rape and first and third degree sexual offenses[.] Any clarification which the jury received on the element of consent would have been applicable to its understanding of the first and third degree sexual offense counts, as well as the rape charges.” Id. at 266.

Here, the jury sought clarification of the applicable law, i.e., the definition of consent. The issue of Giselle’s consent was central to the jury’s decision and its definition was not fairly covered by any of the other jury instructions. Accordingly, the court was required to provide a supplemental instruction to resolve the jury’s confusion.

The circuit court fashioned its response to the jury question based upon the definition of consent set forth in MPJI–CR 4:29, the second-degree rape instruction, which provides: “If (name) submitted to sexual intercourse, and if you find that her submission was induced by force or by threats that put her in reasonable fear of bodily harm to herself [or to another person], then her submission was without consent. Her fear was reasonable if you find that, under the circumstances, a reasonable woman would fear for her safety. Finally, consent means actually agreeing to the act of intercourse, rather than merely submitting as a result of force or threat of force.”

The first two sentences of the instruction clearly concern only proof of the element of force required for a rape conviction. Fourth degree sexual offense does not require proof of force; it requires only lack of consent. It was appropriate, therefore, for the court to omit the first two sentences pertaining to the element of force from the supplemental instruction, and to alter the remaining definition in accordance with the facts of the case. Indeed, as a general matter, use of the pattern jury instructions is favored. See Merzbacher v. State, 346 Md. 391, 404 (1997); Wills v. State, 329 Md. 370, 383–84 (1993).

Perez relied on State v. Rusk, 289 Md. 230 (1981), a rape case involving overlapping evidence of threat of force and consent. Id. at 246–47. The Rusk Court observed that, “Consent may involve submission, but submission does not necessarily involve consent.” Id. at 242. It then noted that, in rape cases involving only the threat of force, “lack of consent is generally established through proof of resistance or by proof that the victim failed to resist because of fear.” Id. The court then posited that extreme fear, such as that of death or serious bodily harm, could establish lack of consent when unaccompanied by resistance. Id. at 242–43. The Court by no means indicated that such fear was necessary to prove lack of consent even in rape cases.

Given that force or threat of force is not an element of fourth degree sexual offense, such proof would be not only unnecessary but also unusual, especially for a misdemeanor offense. See also Martin v. State, 113 Md.App. 190, 241 (1996). Thus, the trial court’s supplemental instruction was an accurate rendition of Maryland law.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Giselle’s testimony was more than sufficient to permit the jury to find that she did not consent to the digital penetration.

“The standard of review for appellate review of evidentiary sufficiency is whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt.” Harrison v. State, 382 Md. 477, 487–88 (2004).

Giselle testified that she did not want Perez to penetrate her digitally, and she agreed to the “test” only to avoid getting into further trouble with her mother or police, as threatened by Perez. She further testified that during the penetration she told Perez repeatedly to stop, which he refused to do.

The jury clearly chose to credit Giselle’s testimony that she was threatened or coerced into submitting to the penetration, as it was entitled to do. See Dawson v. State, 329 Md. 275, 281 (1993).

PRACTICE TIPS: The fourth-degree offense is only a misdemeanor with a maximum penalty of one year’s incarceration. It is only when additional elements of intimidation, beyond mere non-consent, are added to the definition that the severity of the sexual offenses escalates dramatically.” See Martin v. State, 113 Md.App. 190 (1996).

Torts

Negligence

BOTTOM LINE: Defendants had a duty to condo owners to properly pursue any claims against the builder arising out of defects in design and/or construction of the common elements, and a breach of that duty gave rise to a cause of action for negligence.
CASE: Greenstein v. Council of Unit Owners of Avalon Court Six Condominium, Inc., No. 0485, Sept. Term, 200 (filed Sept. 29, 2011) (Judges Eyler, J., WOODWARD & Leasure specially assigned). RecordFax No. 11-0929-01, 26 pages.

FACTS:  Questar Homes Avalon Court Six, LLC (Questar) was the developer of Avalon Court Six Condominium, Inc. (the Condominium), consisting of 36 residential condominium units in four buildings located in Pikesville.

Questar served as the initial director-members of the Condominium’s Board of Directors pursuant to the Articles of Incorporation filed with the State Department of Assessments and Taxation on April 6, 1998. After the election of a board of directors by unit owners, Questar was no longer a director-member and control of the Condominium passed to the Council of Unit Owners of Avalon Court Six Condominium, Inc. (the Council).

Between 1998–2002, 17 unit owners reported problems regarding water infiltration primarily through windows. In January 2002, the elected Board of Directors entered into a Management Agreement with Community Association Management, LLC (CAM). Six months later, the CAM property manager, sent a memorandum to all condominium unit owners and residents requesting information regarding the status of any water leaks. The memorandum was dated June 10, 2002. In the CAM memorandum, unit owners were specifically asked about any past or then existing water leakage “from the outside into (your) unit.” They were asked to respond by June 30, 2002, even if the problem was reported and resolved. Many owners responded.

On August 26, 2002, U.S. Inspect, Inc. issued a Replacement Reserve Report which covered the common elements of the community including building exteriors, concrete walks, curb and gutter and retaining wall. No unit interiors were evaluated.

In September 2005, the Council’s Board of Directors authorized the commission of a building leakage investigation by Simpson, Gumpertz & Herger (SGH). SGH completed a report which was dated December 1, 2005. In the Background Section on page 1 of the SGH report, the preparer noted that “[t]he buildings continue to leak at window heads despite past repairs by the original contractor.

On August 8, 2006, the Council filed a complaint against Questar on behalf of the Council and individual unit owners, seeking recovery for injury and damage to the condominium building, units, and Common Elements from water leakage, seepage, and deterioration that allegedly were caused by defects in design and construction.

Questar filed a motion to dismiss, or in the alternative, for summary judgment, alleging, that the Council’s claims were time barred. The circuit court granted Questar’s motion for summary judgment, ruling that all of the claims in the Council’s complaint were time barred because pursuant to the “discovery rule,” the three year statute of limitations began to run — at the latest — in June 2002, when CAM received responses to its memorandum and not on December 1, 2005 when the Council received the SGH Building Leakage Investigation report. The Council did not appeal this order, and thus it became a final judgment.

As a result of that order, the Council was unable to recover from Questar the costs of correcting the water infiltration problems, as well as other design and construction defects, and was forced to bear such costs that exceeded $1,000,000. The Council obtained a construction loan to cover the cost of the repairs and, in order to repay the loan, mandated that each unit owner pay certain special assessments and an increase of $400 in the monthly condominium fee. Thereafter, Hillel Greenstein and 34 others of the 36 unit owners (the Owners) sued the Council to recover the monetary damages that they suffered as a result of the Council’s negligence.

The circuit court granted summary judgment for the Council on the ground that there was no legal duty on the part of the Council to file a lawsuit on behalf of the Owners and that the complaint was time barred.

The Owners appealed to the Court of Special Appeals, which reversed and remanded.

LAW: There is no Maryland case involving the right of individual unit owners to initiate a negligence action against their condominium association for failing to maintain the common elements.

In Queen’s Grant Villas Horizontal Property Regimes I–V v. Daniel International Corp., 335 S.E.2d 365 (S.C.1985), the association sued the developer “for alleged defects in the construction of the common elements of a condominium project,” which the lower court disposed of on summary judgment for lack of standing. Id. at 365. The Supreme Court of South Carolina reversed, holding that the “property regime ha[d] standing to bring an action for construction defects in common elements that the regime ha[d] the duty to maintain,” particularly when “master deeds and the by-laws” charged the association with “the obligation to maintain the common elements.” Id. at 366. The Court went on to state, albeit in dicta: “Should the Regime not uphold its duty to pursue a recovery for any alleged construction defects in the common elements which it maintains, it may be liable to the homeowners for its omissions.” Id.

In Murphy v. Yacht Cove Homeowners Ass’n, 345 S.E.2d 709 (S.C.1986), the Supreme Court of South Carolina held “that a member of a condominium association” had standing to “bring an action in contract or tort against the association.” Id. at 710. In that case, joint owners of a condominium unit brought a negligence action against Yacht Cove Homeowner’s Association (the Association), an unincorporated condominium association, for failure to maintain the common elements after one of the owners suffered physical injury in the common area. Id. at 709. The Supreme Court of South Carolina found that, “since the association can sue a member for failure to adhere to the bylaws, rules, and regulations, a member necessarily can sue the association for this same failure.” Id. at 710.

In so holding, the Court relied on Queen’s Grant Villas, statement at 335 S.E.2d at 366, and held that “[t]his necessarily implies that an association can be sued by the unit owners for its failure to discharge its duties.” Murphy, 345 S.E.2d at 710.

Although Queen’s Grant Villas and Murphy focus on the issue of standing, both cases endorse the proposition that a condominium association has a “duty to pursue a recovery for any alleged construction defects in the common elements which it maintains,” Queen’s Grant Villas, 335 S.E.2d at 366, and that, if they fail to do so, individual unit owners have a cause of action against the association for its negligence.

In Siller v. Hartz Mountain Associates, 461 A.2d 568 (N.J.1983), the plaintiffs, who were owners of condo units in the Harmon Cove community, brought suit against the developer and two associations (collectively the Associations). Id. at 569.

Apparently, the Association’s board of directors designated a Legal Action Committee to investigate claims against the developer. The Committee reported several deficiencies attributable to the developer and recommended engaging an attorney to institute litigation, which the board of directors initially adopted. Shortly thereafter the board rescinded the action engaging that attorney and instead negotiated a settlement. The plaintiffs alleged in their fourth count that the proposed settlement was unreasonable. Id. at 570.

The Supreme Court of New Jersey stated: “Obviously the unit owner has an interest in claims against the developer arising out of damages to or defects in the common elements. However, the association has been charged with and delegated the primary responsibility to protect those interests. So long as it carries out those functions and duties, the unit owners may not pursue individual claims for damages to or defects in the common elements predicated upon their tenant in common interest. The Condominium Act contemplates as much.” Id. at 573.

The Court, however, clarified that “the association’s primary right to sue does not diminish any claim that the unit owner may have against the association. The association’s board of directors, trustees or other governing body have a fiduciary relationship to the unit owners, comparable to the obligation that a board of directors of a corporation owes to its stockholders.” Id. at 574.

The Court held that the individual unit owners had the right to sue the Associations for obtaining an inadequate or unreasonable settlement of the claims against the developer. Id. at 570, 575. A necessary predicate to this holding is a duty on the part of the Associations to pursue a recovery against the developer for damages caused by the defective design or construction of the common elements.

Therefore, Siller, along with Queen’s Grant Villas and Murphy, supports the principle that a condominium association, which has the obligation to maintain and repair the common elements and the right to bring suit thereon, has the “duty to pursue a recovery for any alleged construction defects in the common elements which [the association] maintains,” see Queen’s Grant Villas, 335 S.E.2d at 366, and the individual unit owners have a cause of action against the association when the association breaches that duty by failing to pursue the claim altogether or to negligently pursue such claim.

The Condominium Declaration (the Declaration) and the Condominium By–Laws (the By–Laws) set forth in detail the responsibilities and obligations of the Council and Condominium Board of Directors.

The Declaration sets forth that the Owners have a property interest in the common elements of the Condominium. The Owners, however, do not possess the authority to act in regard to the common elements; that authority lies exclusively with the Council. The Declaration provides that the Council shall maintain, repair and replace all common elements.

The By–Laws also delegate to the Board of Directors the exclusive right to initiate any form of legal proceedings, which includes, “demands for performance of the Developer’s obligations” and “any claims or actions related to the Common Elements.”

By virtue of the Council’s exclusive control over the common elements, a duty arises in the Council to act in regards to the common elements on behalf of the individual unit owners. Therefore, the duty to “maintain, repair and replace” the common elements, together with the exclusive right to initiate litigation regarding the common elements, creates a concomitant obligation on the part of the Council to pursue recovery from Questar on behalf of the Owners for damage to the common elements caused by Questar’s negligence.

The Owners sought recovery for only the increased annual and special assessments that they were forced to pay for the repair of the damage to the common elements. The By–Laws provide that the annual assessments and special assessments can only be used for common expenses for the common elements. The Declaration defines common expenses as the costs of maintenance, repair, and replacement of the common elements.

Thus, the Owners’ claims were related to the common elements and common expenses, not to any damage sustained by them to their individual units.

COMMENTARY: Under CJ §5–101, a civil action shall be filed within three years from the date it accrues. Maryland employs the discovery rule, which tolls the accrual of the limitations period until the time the plaintiff discovers, or through the exercise of due diligence, should have discovered, the injury. Frederick Road Ltd. Partnership v. Brown & Sturm, 360 Md. 76 (2000).

The Owners sought recovery for the Council’s failure to properly pursue a legal remedy against Questar, not for Questar’s deficient design or construction of the Condominium and common elements. Thus the earliest that their cause of action accrued was in June 2005, when the circuit court held that the three-year statute of limitations expired, thus precluding any recovery by the Council from Questar. The Owners filed their complaint against the Council on January 23, 2008, well within the three-year statute of limitations that would have expired in June 2008.

Therefore, the complaint was not time barred.

PRACTICE TIPS: “If the trial court did not specify the grounds upon which it granted summary judgment, appellate courts assume that the trial court ‘carefully considered all of the asserted grounds and determined that all or at least enough of them … were meritorious.’”  Kimmel v. SAFECO Ins. Co., 116 Md.App. 346, 354–55 (1997) (quoting Bond v. NIBCO, Inc., 96 Md.App. 127, 133 (1993)).