Court of Appeals
Evidence; Marital communications: Text messages between wife and husband charged with abusing a child were not confidential and were properly admitted in the circuit court because, under the Family Law Article, Marylanders are required to report child abuse, notwithstanding any other provision of law, including a law on privileged communications, and because individuals are under a legal duty to report child abuse, statements concerning child abuse cannot be reasonably presumed confidential. State of Maryland v. Kevin Sewell, No. 20, Sept. Term, 2018.
Court of Special Appeals
Criminal Procedure; Ineffective assistance of counsel: Where defense counsel advised a juvenile defendant at sentencing of his right to apply for sentence review by a three-judge panel, but erroneously advised that the panel might increase the sentence, the defendant was entitled to pursue a belated application for post-conviction relief because counsel’s deficient representation likely resulted in the defendant losing his opportunity to timely apply for sentence review. Tevin Moultrie v. State of Maryland, No. 213, Sept. Term 2017.
Criminal Procedure; Sex offender registration: Judgment of the circuit court, which granted summary judgment to defendant who sought a declaration that he was not required to register as a sex offender, reversed because, where the key issue of the victim’s age was not addressed at defendant’s plea hearing, the parties failed to develop a record sufficient for the court to resolve the question of defendant’s obligation to register. State of Maryland v. Jimmie Rogers, No. 1993, Sept. Term 2017.
Court of Appeals
BOTTOM LINE: Text messages between wife and husband charged with abusing a child were not confidential and were properly admitted in the circuit court because, under the Family Law Article, Marylanders are required to report child abuse, notwithstanding any other provision of law, including a law on privileged communications, and because individuals are under a legal duty to report child abuse, statements concerning child abuse cannot be reasonably presumed confidential.
CASE: State of Maryland v. Kevin Sewell, No. 20, Sept. Term, 2018 (filed April 2, 2019) (Judges Barbera, Greene, ADKINS, McDonald, Watts & Getty) (Judge Hotten, dissents).
FACTS: Three-year-old Luke Hill lived with his mother, Victoria Harmon, and her fiancé, Nick Miller, in Keller, Virginia. Luke was a happy, healthy boy who enjoyed running around, playing outside, and driving his toy Jeep. In late April, Luke went to his pediatrician for a wellness check, and the doctor told his mother that he was “perfectly fine.”
Approximately one week later, Luke’s mother and Nick left Luke in the care of Amanda and Kevin Sewell (“Amanda” and “Kevin,” respectively), his aunt and uncle, so that they could enjoy a night out. They arrived at Amanda and Kevin’s house in Pocomoke City, Maryland around 3:00 p.m. and visited for a short time, during which Luke and his cousin were running, playing, and wrestling. When Victoria and Nick departed for Salisbury, Kevin was holding Luke.
Kevin played with the boys until around 5:00 p.m. After dinner, Amanda gave Luke a bath. She testified that during Luke’s bath, she noticed, for the first time, that he had many bruises, including bruising behind his ears, down his neck, on his chest, arms, and legs. He also had black eyes and a knot on his head. Amanda called Victoria and told her about the bruises behind his ears and that Luke was not feeling well.
Amanda woke up around 5:00 a.m. on Sunday morning, May 3, to get ready for her shift at a nearby restaurant. Luke and his cousin woke shortly thereafter, and Amanda made them breakfast. She departed for work around 6:45 a.m., leaving the children in Kevin’s care. Beginning around 9:00 a.m., Amanda and Kevin sent a series of text messages to each other in which Kevin complained that Luke was being very difficult.
When Amanda returned from work that afternoon, she went into her bedroom to change and saw Luke covered with a blanket, seemingly asleep. She further stated that without waking Luke, she put a diaper on him, changed his shorts, and Kevin put him in her car. While Amanda was driving Luke home, she and Kevin exchanged further text messages in which they discussed how Luke and Kevin were fighting and biting each other and how Luke seemed to bruise easily.
When Amanda arrived at her sister’s home, Victoria found Luke in the backseat hunched over. He was unresponsive, had a large bump on his head, had a bite mark on his arm, and was making a phlegmy sound while barely breathing. It was later discovered that Luke also had several other bruises. Nick took Luke out of the car, and Victoria called 911. Nick then went to get a neighbor who was an EMT.
Initially, Luke was transported by ambulance to Shore Memorial Hospital in Nassawadox, Virginia but, given the grave nature of his condition, he was promptly transported by helicopter to King’s Daughters Hospital in Norfolk, Virginia. Luke was taken into surgery immediately upon arrival. He never regained consciousness and died.
Kevin Sewell was charged with (1) first-degree murder, (2) first-degree child abuse, (3) second-degree murder, and (4) neglect of a minor. Amanda Sewell was also charged in the death of Luke, but was granted immunity by the State and compelled to testify.
Before trial, a hearing was held on defense counsel’s motion in limine to exclude the text messages between Kevin and his wife while Luke was in his care. The basis for the motion was the marital communications privilege. The trial court denied the motion.
Kevin was convicted of first-degree murder, first-degree child abuse, and neglect of a minor child. In a reported decision, Sewell v. State, 236 Md. App. 96, 114 (2018), the intermediate appellate court ruled that the text messages between Kevin and his wife were marital communications and, as such, it was incumbent upon the State to rebut that presumption of confidentiality. Concluding that the State failed to do so, it held that the trial court abused its discretion in admitting the text messages, and it remanded the case for a new trial. Id. at 115–16.
The State appealed to the Court of Appeals, which reversed the judgment of the Court of Special Appeals and affirmed the trial court’s decision to admit the text messages.
LAW: Subject to limited exceptions, “[l]itigants and their spouses are competent and compellable to give evidence.” See Md. Code (1973, 2013 Repl. Vol.), §9-101(2) of the Courts and Judicial Proceedings Article (“CJP”). There are two distinct marital privileges: the first, protecting confidential marital communications, and the second, privileging adverse spousal testimony.
Here, the confidential marital communications privilege was at issue. In Maryland, this privilege is codified at CJP § 9-105, “Confidential communications occurring during marriage.” This section provides that “[o]ne spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage.” Id. The privilege is available in both civil and criminal trials and may be invoked by either spouse. See Joseph F. Murphy, Jr., Maryland Evidence Handbook, §903(B) at 445–46 (4th ed. 2010).
Typically, “privilege statutes are interpreted narrowly.” Bryant v. State, 393 Md. 196, 202 (2006). This has been stated in cases involving the psychotherapist-patient privilege, Bryant, 393 Md. at 202; the attorney-client privilege, E.I. du Pont de Nemours & Co. v. Forma–Pack, Inc., 351 Md. 396, 406 (1998); and the accountant-client privilege, Sears, Roebuck & Co. v. Gussin, 350 Md. 552, 562 (1998). There is no decision which explicitly announced a narrow interpretation of CJP §9-105, but it has been interpreted and discerned that the General Assembly intended certain
limitations on what communications qualified for the marital privilege. “The policy reasons underlying the privilege for confidential communications between husband and wife are (1) that the communications originate in confidence, (2) the confidence is essential to the relation, (3) the relation is a proper object of encouragement by the law, and (4) the injury that would inure to it by the disclosure is probably greater than the benefit that would result in the judicial investigation of truth.” Coleman v. State, 281 Md. 538, 541 (1977).
To narrowly construe a privilege, however, simply means that courts must not endeavor to overread its applicability and resolve ambiguities in favor of admitting evidence. See Ashford, 147 Md. App. at 70. In Maryland, any party resisting discovery by asserting a privilege “bears the burden of establishing its existence and applicability” and must “substantiate its non-discovery” by a preponderance of the evidence. Forma–Pack, 351 Md. at 406, 409 (applying attorney-client privilege). The confidential marital communications privilege requires: (1) a communication; (2) that the couple was married at the time of the communication; and (3) that the communication was intended to be confidential. See CJP §9-105.
“Generally, the courts have presumed that communications between husband and wife are confidential and privileged, although the circumstances of a given case can negate this presumption.” Coleman, 281 Md. at 543. “[T]here is a rebuttable presumption that marital communications are confidential and privileged. The presumption is rebutted…where it is shown that the communication was not intended to be confidential.” Enriquez, 327 Md. at 372.
The tipping point is reached when the privilege is asserted with respect to information the other spouse is under a legal duty to disclose to law enforcement. Here, under the Family Law Article (“FL”), Amanda, like all Marylanders, owed a legal duty to make a report if she had any “reason to believe” that a child was the victim of abuse or neglect, “notwithstanding any other provision of law.” FL §-705(a)(1). The phrase
“notwithstanding any other provision of law” in this section includes the confidential marital communications privilege. Kevin, like all Marylanders, is “presumed to know the law,” irrespective of his subjective understanding. Benik v. Hatcher, 358 Md. 507, 532 (2000). When Kevin discussed matters that he knew (or should have known) Amanda had an affirmative duty to report to a third party, he no longer retained a colorable claim that the communications were “reasonably expected” to remain confidential. It was not material that Amanda did not, in fact, make a report. Rather, the focus was on what Kevin could reasonably expect. Thus, in such a circumstance, such communication is not confidential, and therefore not excluded by CJP §9-105, the confidential marital communications privilege.
Accordingly, the judgment of the Court of Special Appeals was reversed.
COMMENTARY: Information or circumstances giving rise to a reportable incident of child abuse need not be found in each individual communication to be admissible. See, e.g., Utah v. Widdison, 4 P.3d 100, 111 n.9 (Utah Ct. App. 2000) (recounting the testimony from a wife concerning statements by her former husband that gave rise to suspected child abuse and were admitted over an objection invoking the confidential marital communications privilege). Reporting can be cumulative. For example, some suspicions of abuse are built up over time—e.g., from ongoing conversations and experience with a child or their suspected abuser—while others are gained instantaneously—e.g., seeing a child with injuries clearly suggesting abuse.
Regardless, once a mandated reporter possesses the necessary “reason to believe” that a child has been the victim of abuse, any information “that would help to determine” the individual suspected of the abuse and the circumstances surrounding that suspicion shall be revealed, “notwithstanding any other provision of law, including a law on privileged communications,” FL §§5-704(c), 5-705(a)(1).
Accordingly, Amanda was obligated by law to report the suspected abuse, including each text message quoted in this opinion. They were not protected by the confidential marital communications privilege because it was not reasonable for Kevin to believe that his text message communications were confidential when they pertained to child abuse and must be disclosed. It mattered not whether Kevin thought they were confidential at the time he sent them.
A court performs an objective analysis, and based on such, clearly the privilege does not attach to communications relating to child abuse. The entire collection of text messages related to Kevin’s actions that day as caretaker for the children, and therefore, they were admissible against him for all charges relating to and stemming from child abuse.
DISSENT: In State v. Mazzone, 336 Md. 379, 648 A.2d 978, the Court held that the Maryland Wiretapping and Electronic Surveillance Act preserved the marital communications privilege if interception of these communications was not minimized and reasonable. According to the dissent, the holding in Mazzone reveals that a plain language analysis of CJP §9-105 uncovers the legislative intent to err on the side of preserving confidential marital communications as a privilege, further evidencing the liberal construction of the privilege. Accordingly, the dissent would affirm the judgment of the Court of Special Appeals.
PRACTICE TIPS: “The argument traditionally advanced in support of the marital communications privilege is that the privilege is needed to encourage marital confidences, which confidences in turn promote harmony between husband and wife.” 1 Brown, McCormick on Evidence, §86 at 523. Therefore, offenses against a “spouse, child, or cohabitant…most strongly implicate the policy that justifies the creation” of an exception to the marital communication privilege. 6C–13 Edward J. Imwinkelried, The New Wigmore: A Treatise on Evidence, Evidentiary Privileges, §6.13.5 at 1467–68. Such offenses “imperil the family unit,” and thus undermine the overarching rationale for the privilege. Id.
Court of Special Appeals
Ineffective assistance of counsel
BOTTOM LINE: Where defense counsel advised a juvenile defendant at sentencing of his right to apply for sentence review by a three-judge panel, but erroneously advised that the panel might increase the sentence, the defendant was entitled to pursue a belated application for post-conviction relief because counsel’s deficient representation likely resulted in the defendant losing his opportunity to timely apply for sentence review.
CASE: Tevin Moultrie v. State of Maryland, No. 213, Sept. Term 2017 (filed March 29, 2019) (Judges Nazarian, ARTHUR & Eyler, J. (Senior Judge, Specially Assigned)).
FACTS: On March 13, 2007, when he was 15 years old, Tevin Moultrie shot and killed another young man. As he ran from the police, Moultrie threw away a pistol. The gun went off when it hit the ground, and the police officers thought that Moultrie was firing at them.
The State charged Moultrie, as an adult, with the offenses of first-degree murder; conspiracy to commit first-degree murder; two counts of attempted first-degree murder, first-degree assault, and second-degree assault (of the police officers who were pursuing him when he discarded the gun); and three counts of the illegal use of a handgun and of wearing or carrying a handgun. The Circuit Court for Baltimore City denied Moultrie’s motion for a reverse waiver to transfer the case to the juvenile court.
On March 6, 2008, when Moultrie was 16 years and three months old, he pleaded guilty to second-degree murder, using a handgun in the commission of a crime of violence, and two counts of reckless endangerment. The plea agreement, to which the court bound itself, contemplated a 30-year cap on the total sentence, but permitted Moultrie to argue for less.
On October 7, 2008, about six weeks before Moultrie’s seventeenth birthday, the court sentenced him to 30 years’ imprisonment for second-degree murder, a concurrent 20 years (the first five years without the possibility of parole) on the handgun count, and concurrent one-year sentences on the reckless endangerment counts.
After the court imposed those sentences, Moultrie’s counsel advised him about his post-sentencing rights. On April 15, 2016, Moultrie filed a petition for post-conviction relief under the Maryland Uniform Postconviction Procedure Act, Maryland Code (2001, 2008 Repl. Vol.), §§7-101 to -109 of the Criminal Procedure Article (“CP”). Moultrie asserted that he received ineffective assistance of counsel because his trial counsel (1) did not request a hearing on the motion to modify before the five-year deadline ran; (2) erroneously informed him that a three-judge panel could increase his sentence if he filed an application for review under Rule 4-344; (3) failed to object to the trial court’s alleged errors at the reverse-waiver hearing; and (4) failed to request that the case be transferred to the juvenile court for sentencing under CP §4-202.2(a)(1). The court denied post-conviction relief.
Moultrie appealed to the Court of Special Appeals, which reversed.
LAW: The Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantee a defendant the right to counsel in a criminal proceeding. To ensure that the right to counsel provides meaningful protection, the right has been construed to require the “effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).
To establish a claim of ineffective assistance of counsel in violation of his constitutional rights, Moultrie must satisfy the two-prong test articulated in Strickland. The first prong requires Moultrie to show that his counsel’s performance was deficient because he “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed [to Moultrie] by the Sixth Amendment.” Strickland v. Washington, 466 U.S. at 687. The second prong requires Moultrie to show that counsel’s performance was so deficient that he was prejudiced by it. Id.
To satisfy the first prong, Moultrie must show that the acts or omissions of counsel were the result of unreasonable professional judgment and that counsel’s performance fell below an objective standard of reasonableness considering prevailing professional norms. Cirincione v. State, 119 Md. App. 471, 484 (1998). To satisfy the second prong, Moultrie must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. at 694; Harris v. State, 303 Md. 685, 700 (1985).
Whether Moultrie received ineffective assistance of counsel is “a mixed question of fact and law.” State v. Purvey, 129 Md. App. 1, 10 (1999). The Court “will defer to the post conviction court’s findings of historical fact, absent clear error.” Cirincione v. State, 119 Md. App. at 485. But the Court exercises its “own independent judgment as to the reasonableness of counsel’s conduct and the prejudice, if any.” State v. Jones, 138 Md. App. 178, 209 (2001); accord Coleman v. State, 434 Md. at 331.
Md. Rule 4-345(e) permits a criminal defendant to file a motion for modification or reduction of sentence within 90 days after the imposition of the sentence. A criminal defendant has a right to counsel on such a motion. See State v. Flansburg, 345 Md. 694, 699-702 (1997). In Flansburg a defendant instructed his lawyer to file a motion for modification or reduction of sentence. Id. at 696. Notwithstanding the requests, however, the lawyer did not file the motion. Id. Hence, the defendant filed a petition for post-conviction relief, claiming that he was denied his right to the effective assistance of counsel because of the attorney’s failure to file the motion. Id. at 697.
The Court of Appeals held that the defendant could pursue that claim under the Postconviction Procedure Act. Id. at 705. In reaching its decision, the Court reasoned that the defendant “had a right to expect that his request would be honored.” Id. The Court also reasoned that “[c]ounsel’s failure to abide by his client’s wishes resulted in [the defendant’s] loss of any opportunity to have a reconsideration of sentence hearing.” Id. As a remedy for that loss, the Court held that the defendant could file a belated motion for reconsideration of his sentence. Id.
This case differed from Flansburg in that Moultrie’s attorney did not fail to comply with a request to file a motion for modification or reduction of the sentence. Instead, he filed the motion and asked the court to hold it sub curia, but failed to pursue a hearing or ruling during the remainder of the five-year period in which the court was empowered to decide the motion. Moultrie likened his case to State v. Shoemaker, 225 Md. 639, 641-42 (1961), in which the Court of Appeals granted the remedy of a belated appeal after the criminal defendant’s original appeal had been dismissed because of his attorney’s failure to transmit the record. This analogy had merit. Just as it is insufficient for an attorney simply to note an appeal, so too is it insufficient for an attorney simply to file a motion for the modification or reduction of a sentence. Just as an attorney must take steps to ensure that an appeal is heard (by transmitting the record and filing a brief), so too must an attorney take steps to ensure that motion for modification or reduction of a sentence is heard, by requesting a hearing before the five-year deadline runs.
When counsel undertook to file the motion for modification or reduction of Moultrie’s sentence, he undertook to ensure that the court would act on the motion before the expiration of the five-year deadline. Because of counsel’s failure to fulfill that undertaking, Moultrie is entitled to a belated hearing on his motion.
Accordingly, the judgment of the circuit court was reversed and the case remanded.
COMMENTARY: The post-conviction court concluded that Moultrie had not met his burden of showing that but for counsel’s unprofessional errors, the result would have been different. In support of that conclusion, the court reasoned that when Moultrie entered his guilty plea, almost eight months before he was sentenced, the 16-year-old defendant had been told it would be illegal for the court to impose a sentence of more than 30 years. Because counsel had told his adolescent client that the sentencing court could not legally impose a sentence of more than 30 years when he entered a plea, the post-conviction court appears to have found it immaterial that counsel erroneously informed his client at sentencing that a three-judge panel could impose such a sentence.
The post-conviction court’s reasoning was flawed. At the time of sentencing, Moultrie’s experienced trial counsel had obviously forgotten that a court could not legally impose a sentence of more than 30 years in this case: otherwise, why would counsel have told his client that a three-judge panel could “raise” the sentence? Yet if counsel himself had forgotten what he had said almost eight months earlier, it is simply untenable to suggest that his young client would remember it. Furthermore, even if Moultrie had somehow remembered what his counsel had previously said about the sentencing court’s inability to impose a sentence of more than 30 years, it was entirely conceivable that the untutored, lay client might have understood his counsel to mean that a three-judge panel had powers that the sentencing judge did not.
In fact, a three-judge panel does have the power to increase a sentence if the defendant has received less than the maximum sentence allowed by law. Thus the court improperly concluded that defense counsel’s erroneous advice at sentencing was negated by the advice that he gave when Moultrie pleaded guilty eight months earlier.
PRACTICE TIPS: A criminal defendant does not receive effective assistance of counsel if his defense attorney fails to inform him about a fact material to the length of incarceration, such as a possible mandatory sentence. Williams v. State, 326 Md. 367, 376 (1992). By the same token, a criminal defendant does not receive effective assistance of counsel if his defense attorney misinforms him about a fact material to the length of incarceration, such as a three-judge panel’s inability to increase the maximum sentence under a binding plea agreement.
Sex offender registration
BOTTOM LINE: Judgment of the circuit court, which granted summary judgment to defendant who sought a declaration that he was not required to register as a sex offender, reversed because, where the key issue of the victim’s age was not addressed at defendant’s plea hearing, the parties failed to develop a record sufficient for the court to resolve the question of defendant’s obligation to register.
CASE: State of Maryland v. Jimmie Rogers, No. 1993, Sept. Term 2017 (filed March 28, 2019) (Judges Kehoe, NAZARIAN & Salmon (Senior Judge, Specially Assigned)).
FACTS: On May 1, 2015, Jimmie Rogers was charged by indictment in the Circuit Court for Anne Arundel County with five counts of human trafficking a minor victim and two counts of prostitution. At the start of Mr. Rogers’s plea hearing five months later, Count Five of the indictment was amended from alleging that he had trafficked a minor victim, citing §11-303(b) of the Criminal Law Article (“CR”), to human trafficking generally, citing CR §11-303(a). Mr. Rogers pleaded guilty to the amended Count Five and the State entered a nolle prosequi on the remaining charges.
At Mr. Rogers’s plea hearing, the State laid out the facts it planned to prove at trial. On April 3, 2015, Maryland State Trooper Heid was searching for a missing young woman, M.H., who was believed to be the victim of human trafficking. In the course of his investigation, Trooper Heid came across a post on Backpage, a website known to him as an advertising hub for sex workers and human trafficking victims. Based on his knowledge and experience in human trafficking investigations, he suspected that the person featured in the post was a human trafficking victim and might be M.H.
Trooper Heid called the number provided on the Backpage post to set up a meeting with the subject for 9:00 that morning. He suspected that the person he spoke to on the phone was a man attempting to disguise his voice as a woman’s. Based on the pictures on Backpage, Trooper Heid believed the victim was at a Red Roof Inn in Linthicum, a hotel he knew was a popular prostitution venue. Trooper Heid and several colleagues surveilled the Red Roof Inn’s parking lot and saw Mr. Rogers emerge from a vehicle, enter a motel
room, return minutes later, and drive off. Shortly thereafter, Trooper Heid received a phone call from the number he’d found on Backpage. The caller, who had a different voice than the individual to whom he had spoken earlier, instructed him to come to room 333.
When the police knocked on the door, a young woman, later revealed to be M.H., answered. The officers identified themselves and M.H. explained that her “boss,” later identified as Mr. Rogers, had rented the hotel room for her and would be back to check on her soon. She stated that Mr. Rogers had posted her ad on Backpage and that she had, over several days, had sexual intercourse with men for money at Mr. Rogers’s direction. M.H. explained that Mr. Rogers set up “dates” for her through Backpage and kept half of the proceeds in exchange for security. It was later revealed that Mr. Rogers had, in fact, been holding all of the proceeds from M.H.’s sex work.
Mr. Rogers was sentenced to ten years’ imprisonment and two years’ probation. All but 548 days of Mr. Rogers’s imprisonment were suspended and he got credit for 202 days already served. Upon release, he registered as a tier II sex offender, as mandated by CP §11-704, when a person is convicted under CR §11-303, and their victim is a minor. See CP §11-701(p)(2).
On January 31, 2017, Mr. Rogers filed a complaint for declaratory judgment in the circuit court seeking a declaration that he was not required to register as a sex offender and ordering the State to remove his name from the Maryland Sex Offender Registry (MSOR), arguing that because he had not been convicted under CR §11-303(b), and because the State had failed to produce any evidence that M.H. was a minor, he did not qualify as a tier II sex offender under CP § 11-701(p)(2). Mr. Rogers provided no evidence to support his motion.
The State filed its own motion for summary judgment and countered that because Mr. Rogers indisputably had been convicted under CR §11-303 and had never contested M.H.’s minority, the plain language of CP §11-704 required him to register. The State attached to its motion the affidavit of Allison Gilford, the supervisor and custodian of records for the MSOR, and several documents that purported to demonstrate M.H.’s minority status: (1) Mr. Rogers’s Criminal Hearing Sheet indicating he pleaded guilty to Count Five after it was amended to cite CR §11-303(b) rather than §11-303(a), (2) the Statement of Charges prepared by Trooper Heid, which indicated repeatedly that M.H. was a minor, and (3) the indictment charging him with five counts of trafficking a minor victim.
The circuit court granted Mr. Rogers’s motion for summary judgment and issued a declaration stating that “Jimmie Rogers is not required to register as a tier II sex offender on the basis of his conviction in State of Maryland vs. Jimmie Junior Rogers, 02-K-15-1039” and that “Defendants State of Maryland and Maryland Department of Public Safety and Correctional Services…shall remove Mr. Rogers’ name from any and all sex offender registries on which it appears.
The State appealed to the Court of Special Appeals, which reversed.
LAW: CR §11-303(a) forbids the knowing “tak[ing] or caus[ing] another to be taken to any place for prostitution; plac[ing], caus[ing] to be placed, or harbor[ing] another in any place for prostitution; persuad[ing], induc[ing], entic[ing], or encourage[ing] another to be taken or placed in any place for prostitution.” In layman’s terms, CR §11-303(a) criminalizes human trafficking, but says nothing specific about the victim.
Section 11-303(b), a more serious offense, specifically criminalizes trafficking children and provides that “[a] person may not violate subsection (a)…involving a victim who is a minor.” Section 11-303(a) is a misdemeanor that carries a maximum penalty of ten years’ imprisonment, a $5,000 fine, or both. CR §11-303(c)(1)(i). CR §11-303(b), a felony, carries a maximum sentence of 25 years’ imprisonment, a fine $15,000 fine, or both. CR §11-303(c)(2).
Individuals convicted of violating CR §11-303 are Tier II sex offenders if the offense is perpetrated against a minor, CP §11-701(p)(2), and they must register with the MSOR. CP §11-704. The registration statute does not differentiate between convictions under CR §11-303(b), a crime for which the victim’s age is an element, and CR §11-303(a), for which the victim’s age is not—a conviction under either subparagraph triggers tier II status if the victim is a minor.
The circuit court did not explain its reasoning when it granted Mr. Rogers’s motion for summary judgment and issued a declaration in his favor, but the conversation between the court and trial counsel at the motions hearing revealed the court’s concerns. In response to the State’s assertion that M.H. was a minor, the court seemed troubled by the quality of the State’s proof: “[b]ut [the] victim is not a minor in the sense that it was merely alleged that the victim was a minor, no proof was put onto that fact, there’s no finding…in that regard.” When the State countered that Mr. Rogers had never contested M.H.’s minority, the court responded that “that’s not how we do it in America. In America, you have to be proven, not disproven of a fact…you can’t make an allegation and say, well, it’s that way, unless it’s proven to be that way.”
Indeed, the evidentiary record at summary judgment left questions about the victim’s age, but the decision to resolve the uncertainty by granting summary judgment to Mr. Rogers was improper. Mr. Rogers never meaningfully disputed the victim’s minority aside from stating baldly that he disputes it, and that was not enough either to defeat or win summary judgment. Zurich Am. Ins. Co. v. Uninsured Employers’ Fund, 197 Md. App. 290, 301 (2011) (“[m]ere general allegations of conclusory assertions will not suffice” at summary judgment). At the same time, the State did not provide affirmative evidence of M.H.’s minority either. Although the State was not obligated to prove M.H.’s minority beyond a reasonable doubt, it still had to prove it by a preponderance of the evidence. See Sweet v. State, 163 Md. App. 676, 688 (2005) (preponderance of the evidence is the appropriate standard when a defendant challenges registration as a sexually violent predator).
Here, the indirect evidence from the State and the absence of any evidence from Mr. Rogers left the circuit court without a record that could support summary judgment for either party. The issue of M.H.’s minority was not addressed at Mr. Rogers’s plea hearing, which required the parties to develop a record sufficient for the court to resolve the question of Mr. Rogers’s obligation to register.
Accordingly, the Court of Special Appeals reversed the summary judgment and resulting declaration and remand the case for further proceedings so that the circuit court can find whether or not M.H. was a minor at the time of the offense and, from there, determine whether Mr. Rogers must register as tier II sex offender under CP §11-704.
COMMENTARY: Mr. Rogers argued that the requirement to register with MSOR can stem only from a crime that “‘involves conduct that by its nature is a sexual offense’ against a minor.” Cain v. State, 386 Md. 320, 336 (2005) (quoting CP §11-701(d)(7).
His reliance on Cain was misplaced. In Cain, the appellant had been charged with several sex offenses as well as second-degree assault. 386 Md. at 323. He pleaded guilty only to second-degree assault, which is not a sexual offense, but the trial court still instructed him to register as a sex offender because the facts of the assault were sexual in nature. Id. at 326. In that context, the Court of Appeals held that registration with MSOR is not an appropriate consequence when the crime of conviction “is not one of the enumerated crimes in the statute requiring registration,” or is not a crime “that by [its] nature constituted a sexual offense.” Id. at 335.
Mr. Rogers’s case was distinguishable—he had been convicted of a sex offense specifically enumerated in CP §11-701(p)(2), and amending the indictment from CR §11-303(b) to CR §11-303(a) did not “alter the offense’s character.” Amending the indictment gave Mr. Rogers the opportunity to plead guilty to a misdemeanor rather than a felony, but his offense still fell well within the scope of sexual crimes that can require registration as a tier II sex offender. Had the General Assembly intended otherwise, it could easily have drafted the definition of tier II sex offenders to encompass only those convicted of CR §11-303(b).
PRACTICE TIPS: “[T]he plain language and overall design of the [MSOR] clearly indicate that it was not intended as punishment, but rather was intended as a regulatory requirement aimed at protection of the public.” Young v. State, 370 Md. 686, 712 (2002). So even though the requirement to register with MSOR starts with a criminal conviction, it is not a criminal sanction—it is “a collateral consequence of a conviction.” In re Nick H., 224 Md. App. 668, 707 (2015).
1 of 1 article
0 articles remaining
Grow your business intelligence with The Daily Record. Register now for more article access.