ANNAPOLIS — Attorneys for a convicted human trafficker and for the state grappled at Maryland’s top court Friday with whether a person’s name can be placed on the state’s Sex Offender Registry for a crime against a child when the individual’s conviction at trial or by plea agreement did not state that the victim was a youngster.
Defense lawyer Nancy S. Forster, pressing the case of Jimmie Rogers, told the Court of Appeals that being listed on the registry requires that the victim’s youth be an element of the convicted crime and thus proven beyond a reasonable doubt or stipulated to in a plea agreement signed off on by a judge.
Assistant Maryland Attorney General Edward J. Kelley countered that the head of the Maryland Sex Offender Registry, an executive branch agency, can conclude the victim was a child based on a review of the indictment and police investigation, which generally state the age. The convict’s name can then be placed on the registry, Kelley said.
“It’s not a particularly complicated determination,” he added.
The argument, however, drew skepticism from Chief Judge Mary Ellen Barbera, who wondered aloud about the propriety of the registry leader concluding the victim was a child when his or her age was neither an element of the convicted crime nor mentioned in the plea agreement.
Forster, seizing on that concern, said the registry head cannot be “acting as a judge, as a factfinder.”
“You cannot give him or her that authority,” said Forster, of Forster & LeCompte in Towson. “That is a judicial function.”
Forster and Kelley were each appealing a lower court ruling that, for Rogers’ name to be placed on the registry, the state must first prove by a preponderance of the evidence that the victim of his human trafficking was a minor.
To Forster, the Court of Special Appeals ruling did not go far enough. She argued that the victim’s age must be proven beyond a reasonable doubt because it is an element of the trafficking crime for which a listing on the registry may be ordered.
To Kelley, the intermediate court went too far, because the registry chief may conclude the victim was a minor based on an independent review.
However, Kelley added the state’s burden of proof should be no greater than preponderance of the evidence, as placement on the registry is a civil sanction designed to warn the public and not a criminal penalty to punish the offender.
“The registry was created to protect children,” Kelley said.
Maryland State Police arrested Rogers after a search for a missing “young woman” led troopers to a post that resembled her on the now-defunct Backpage website, which provided advertising for prostitution, according to the Court of Special Appeals opinion.
A trooper posing as a potential customer called the number and arranged a meeting at a Linthicum hotel, where Rogers was subsequently seen.
The trooper met the young woman – identified in court papers as M.H. – in one of the hotel rooms, where she told the officer that Rogers was her “boss,” had posted the ad on Backpage, had rented the hotel room, had required her to have sex with customers and then kept the proceeds, the opinion stated.
The troopers arrested Rogers, who pleaded guilty in 2015 to human trafficking. Under the plea agreement, the prosecution dropped a charge that Rogers was trafficking a minor, according to the opinion.
He was sentenced to 10 years in prison, with all but 548 days suspended, and two years’ probation.
Upon his release from prison, Rogers was administratively ordered to register as a sex offender.
He challenged the order in Anne Arundel County Circuit Court, saying he was never convicted of trafficking a minor.
The circuit court agreed, saying the registration requirement applies only if it is pleaded to or proven beyond a reasonable doubt that the trafficking victim was a minor.
The state then sought review by the Court of Special Appeals, which said last year that the lower court was wrong to require proof beyond reasonable doubt.
The registration requirement would apply if the state can show it was more likely than not that the victim was a minor, the intermediate appellate court said in its reported decision remanding the case to the circuit court for that determination.
Rogers and the state then sought review by the Court of Appeals.
The high court is expected to render its decision by Aug. 31 in the case, Jimmie Rogers v. State of Maryland, No. 32, September Term 2019.