Hurst v. State

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Richard David Hurst v. State of Maryland No. 124, September Term, 2006. CRIMINAL LAW EVIDENCE PRIOR CRIMES OR BAD ACTS EVIDENCE: Where evidence that a third party did not consent to sexual intercourse with petitioner in the past was not substantially relevant to prove some contested issue in petitioner s current sexual assault case, such evidence was not properly admitted at trial under Maryland Rule 5-404 s general prohibition on the admission of prior crimes or bad acts evidence because it served only to demonstrate that petitioner possessed a criminal propensity to engage in sexual crimes. CRIMINAL LAW EVIDENCE PRIOR CRIMES OR BAD ACTS EVIDENCE: Where the sole defense in petitioner s sexual assault case was consent, and not criminal agency, the identity exception to Maryland Rule 5404 s general prohibition on the admissibility of prior crimes or bad acts evidence did not support admitting a prior rape victim s testimony to demonstrate modus operandi. In the Circu it Court for F rederick C ounty Case No. K-03-34184 IN THE COURT OF APPEALS OF MARYLAND No. 124 September Term, 2006 RICHARD DAV ID HURST v. STATE OF MARYLAND Bell, C.J. Raker *Cathell Harrell Battaglia Greene Wilner, Alan M. (Retired, specially assigned), JJ. Opinion by Raker, J. Filed: July 31, 2007 *Cathell, J., now retired, participated in the hearing and conference of this case while an active mem ber of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. The issue presented in this case is whether the Circuit Court for Frederick County erred in admitting testimony that a rape victim, unconnected to the case before the court, did not consent to s exual interco urse with p etitioner for the purpose o f rebutting p etitioner s contention that the current complainant consented to sexual intercourse. We shall hold that the Circuit Court erred and that the testimony should not have been admitted. I. Petitioner, Richard David Hurst, was convicted by a jury in the Circuit Court for Frederick County of f irst and seco nd degre e rape, first and second degree sexual offense, kidnaping , and false im prisonme nt. The C ircuit Court sen tenced him to life imprisonment without the possibility of parole for first degree rape, a concurrent life sentence for first degree sexual offense, and thirty-years imprisonment for kidnaping.1 Petitioner s convicti ons s temm ed fr om e vents occurr ing o n M ay 16, 2002. That evening, petit ione r enc ountered Ger trude P., a men tally d isabled th irty-seven-year-old woman, as she wa s walking on Wes sel Boulev ard in Hagerstown, Maryland. Ms. P. had been searching for jobs at local stores thro ughout the day and w as returning to her home. Petitioner drove by M s. P. in his pick-up truck and stopped to ask for directions to Frederick, Ma ryland. Ms. P. resp onded b y telling petitioner tha t she wa s not very goo d at giving direction s an d tha t he should go to a n earb y gas s tatio n. Pe tition er then drove awa y. Petitioner returned along the same road shortly thereafter and again asked Ms. P. for directions to Frederick . During th is second e ncounter, M s. P. tried to give petitioner 1 The court merged the remaining convictions for sentencing purposes. directions. Petitioner suggested that she get into his truck to explain the route; Ms. P. agreed and entered the vehicle. Once in the truck, Ms. P. directed petitioner to an exit off the highway that would enable him to reach Frederick. When Ms. P. and petitioner reached the exit, petitioner passed the exit without turning off the road. Petitioner stopped eventually at a fie ld in Fred erick Cou nty. Ms. P. and petitioner offered different versions of the events that followed. Ms. P. testified at trial that after stopping the truck, petitioner told her to get out of the truck. She stated that petitioner to ld her he had a knife but w ould not h urt her unles s she resisted h is commands. Ms. P. said that petitioner then dragged her down a hill and told her to get on the ground and pull dow n her pan ts and und erwear. S he testified tha t petitioner forc ed her to perform fellatio and to engage in vaginal interc ourse. M s. P. stated that at one point, petitioner held his hand over her mouth so that she would not scream. Petitioner contended that he had picked up Ms. P. under the impression that she was a prostitute. He testified that after driving together and talking with Ms. P., he stopped in the Frederick County field to urinate. Petitioner stated that after urinating, he returned to the truck and offered Ms. P. twenty d ollars to fool aro und a litt le bit. He testified that Ms. P. consented to oral and vaginal sex and that it was only when he started to ejaculate that Ms. P. freaked out and began to push and tug. Petitioner conceded that he placed his hand over M s. P. s mouth for a cou ple of seconds because he was afraid . . . she was turning it into something [it] wasn t. Petitioner testified that when Ms. P. freaked out and asked him to sto p, he did s o immed iately. -2- Following the events in the field, petitioner drove Ms. P. to a Hagerstown area convenience store. After they reached the store, petitioner gave Ms. P. twenty dollars. She left the truck and entered the convenience store, at which time a cashier noticed her crying. After asking he r why she w as crying, the cas hier called the police. Ms. P. told the responding police officers that she had been raped. At trial, the State contended that petitioner forced M s. P. to engag e in sexual conduct on the evening of May 16, 2002. The State offered Ms. P. s testimony and the testimony of the convenience store clerk, various police officers, and a registered nurse who had examined Ms. P. early in the morning on M ay 17, 2002. Petitioner testified that the sexual acts w ere consensu al. As rebuttal to petitioner s testimony, the State offered the testimony of Jacque line E., a woman who had been raped by petitioner twenty-one years earlier. The defense objected to Ms. E. s testimony, arguing that it was inadmissible under Maryland Rule 5-404(b) s proh ibitio n of the u se of prior bad acts or cr imes to prove crim inal p rope nsity. The court held a h earin g outside the p rese nce o f the jury. The State contended that because petitioner had been convicted of raping Ms. E. on the evening of February 2, 1981, and petitioner had argued in that earlier case that Ms. E. consented to sexual intercourse on that date, her testimony was admissible to rebut petitioner s claim that Ms. P. consented to sexual relations on the evening of May 16, 2002. The State argued that the testimony was admissible also as proof of modus operandi or signature evidence. -3- The trial court admitted Ms. E. s testimony on the grounds that the testimony was admissible [b]oth as to the gaining or offsetting the consent defense and the similarities proffer. Ms. E. testified before the jury as follows: [STAT E S ATTORN EY]: Okay. When you were at the area of your car did there come a time that you were approached by a person w ho is later iden tified as Rich ard Dav id Hurst? [MS. E.]: Yes. *** [STAT E S ATTORN EY]: And when the defendant approached you as you stood next to your car what did he say to you? [MS. E.]: He said that he needed directions, um, he was, he needed to, um, he needed d irections to go visit a friend, I think around Washin gton Street, Washington and University Avenue. *** He would sa y well I think this street interse cts this Univ ersity does it? And I said I didn t know. Uh, he said he need, he just really wanted to get over to see his friend, um, he know it was really close by. Um [STAT E S ATTO RNEY ]: Did there come a time that he moved closer to you and made a statement to you? [MS. E.]: Yes he forced his way to the car. He, um, told me that he had a k nife, um, no t [STATE S ATTO RNEY]: Did you ever see the knife? [MS. E.]: No, didn t want to. [STATE S ATTO RNEY]: Did he ever show the knife to you? [MS. E.]: No. -4- [STAT E S ATTO RNE Y]: Did he ever indicate wh ere the knife was? [MS. E .]: In his pock et. *** [STAT E S ATTORN EY]: And after he told you to get in the car what did he do? [MS. E.]: He forced his way into the c ar. He told me to, um , roll up all my windows, um, to lock the doors, and that all he wanted was a lift to h is friend s ap artment. *** [STAT E S ATTORN EY]: All right. And after you drove for some time did there come a time that he told you something else? [MS. E.]: Well we drove around for several hours, um, and then he had me stop th e car. *** [STAT E S ATTORN EY]: And did he forc e you to perform oral sex on him? [MS. E.]: Yes. [STAT E S ATTORNEY]: And after he forced you to perform oral sex did he perform another sex act on you? [MS. E.]: Yes he got on top of me he, um, reclined the passenger seat down, um, had me on the passenger seat and climbed on top of me. [STAT E S ATTO RNE Y]: And what, what act d id he perform? [MS. E.]: Um, intercourse. [STATE S ATTOR NEY]: Did you consent to these acts, ma am? -5- [MS. E.]: No. [STAT E S ATTORN EY]: And after these acts were completed what happened? [MS. E .]: He told m e that, um, I could pull my clothes back on and I could, and to get on the driver s side, and, uh, I wou ld just, to just drive him, uh, home , drive him where (inau dible). [STAT E S ATT ORN EY]: A ll right. And did you drive him and let him off? [MS. E.]: Yes. [STATE S ATTO RNEY]: And you left the area? [MS . E.]: Ye s. Petitioner noted a timely appeal to the Court of Special A ppeals. Th e intermed iate appellate court held that Ms. E. s testimony was admissible because the events she described were sufficiently similar to the present charges to be admissible as an exception to the general rule prohibiting the admission of prior bad acts or crimes evidence. Hurst v. Sta te, 171 Md. A pp. 223, 24 7-48, 909 A.2d 10 69, 1083 (2006). Th e Court of Special App eals reasoned that a prior offense need not qualify as a signature crime to be admissible, stating as follows: The just-cited cases undermine appellant s assertion that to be adm issible th e prior o ffense s must b e a sign ature cr ime, nor does appellant persuade us that such a req uirement sh ould be imposed in a case like this where the prior actions by the defendant against Ms. E. were qu ite similar, albeit no t precisely identical, to those com mitted upo n Ms. P. In both instances, appellant approached women see king directions. In each case, the victims were transpo rted by automobile, and the car d oors were locked during the transport by appellant. Further, according to the victims, appellant told both women that he had a knife. He also told both wome n that everything was goin g to -6- be okay if they cooperated. Appellant traveled with both women for a long tim e, eventually coming to secluded areas where he first forced them to perform oral sex and then enga ged in nonconsensual vaginal intercourse with them. Following these acts, he allow ed the w omen to dress and go free. Id. Petitioner filed a petition for a writ of certiorari before this Court, which we granted to address the following question: Did the trial court err in admitting other crimes evidence, specifically old other crimes evidence, here over 21 years old, and which did not qualify as signature crime? Hurst v. Sta te, 396 Md. 524 , 914 A.2d 768 (2007). -7- II. Subject to several exceptions, evidence of other crimes or bad acts is not admissible in Maryland. See Borc hardt v. State , 367 Md. 91, 133, 78 6 A.2d 6 31, 656 (2 001); Ayers v. State, 335 Md. 602, 630, 645 A.2d 22, 35-36 (1994); State v. Faulkner, 314 Md. 630, 633, 552 A.2d 8 96, 897 (1989 ). Propensity evidence, or evidence suggesting that because the defendant is a person of criminal cha racter it is more probable that he committed the crime for which he is on trial, is not admissible into evidence. Streater v. State, 352 Md. 800, 806, 724 A.2d 111, 114 (1999). We reiterated in State v. Taylor, 347 Md. 363, 701 A.2d 389 (1997), that there are few p rinciples of A merican c riminal jurispru dence m ore univers ally accepted than the rule that evidence which tends to show that the accused committed another crime independent of that for w hich he is on trial, even one of the sam e type, is inadmissible. Id. at 369, 701 A.2d at 392 (quoting Cross v. Sta te, 282 Md. 468, 473, 386 A.2d 757, 761 (1978)). Maryland Rule 5-404 embraces these principles. T he Rule sta tes, in pertinen t part, as follows: Evidence of other crimes, wrongs, or acts is not ad missible to prove the character of a person in order to show action in conform ity therew ith. It may, howe ver, be adm issible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absenc e of m istake o r accide nt. Rule 5-404(b). The primary concern underlying the Rule is a fear that jurors will conclude from evidence of other ba d acts that the d efendan t is a bad person and should therefore be convicted, or deserves punishment for other bad conduct and so may be convicted even -8- though the evidence is lacking. Harris v. S tate, 324 M d. 490, 496 , 597 A.2d 956, 960 (1991). See also M erzbache r v. State, 346 Md. 391, 406, 697 A.2d 432, 440 (1997) (stating that the rationale u nderlying Ru le 5-404 is to prevent a jury from punishing a defendant for having a criminal prop ensity ). Rule 5-404 recognizes several exceptions. Evidence of other crimes may be admitted if the evidence is substantially relevant to some contested issue in the case and is not offered to prove guilt bas ed on p ropens ity to com mit crim es. Harris, 324 Md. at 496-97, 597 A.2d at 960. The Ru le makes clear that eviden ce of a party s prior bad acts or crimes may be admissible if it possesses some sp ecial relevan ce, i.e. is substantia lly relevant to some contested issue in the case and is not offered simply to prove criminal character. Id. at 500, 597 A.2d at 961. Before evidence of prior bad acts or crimes may be admitted, the trial court must engage in a three -step an alysis. Faulkner, 314 Md. at 634-35, 552 A .2d at 898. First, the court must d ecide w hether th e evide nce fa lls within an exc eption to Rule 5 -404(b ). Id. at 634, 552 A.2d at 898. Second, the court must decide whether the accused s involvement in the other crim es is established by clear and convincing evidence. Id. Finally, the court must balance the necessity for, and the probative value of, the other crimes evidence against any und ue preju dice like ly to result f rom its a dmissio n. Id. at 635, 552 A.2d at 898. III. Petitioner contends that the trial court erred in admitting the testimony of Ms. E. because the evidence had no special relevance and merely de mon strated cr imin al propensity. -9- Petitioner argues that admission of this type of evidence i.e., testimony involving lack of consent of a prior rape victim to prove another person s lack of consent allows propensity evidence that is inadmissible un der this Court s ruling in Vogel v. State, 315 Md. 458, 554 A.2d 1231 (1989). Petitioner contends also that the events underlying Ms. E. s testimony were not so unusual o r similar to those in the instant case to be admissible under the Rule 5404(b) exception allowing signature crimes evidence, that the passage of time between the events greatly diminished the probative value of Ms. E. s testimony, and that any minimal probative v alue derive d from M s. E. s testimon y was greatly outweighed by its prejudicial effect. The State argues that Ms. E s testimony falls within an exception to R ule 5-404(b). The State s theory is that Ms. E. s testimony that she did not consent to sexual relations with petitioner is relevant to rebut petitioner s defense that Ms. P. consented to sexual activity with him. The State reasons that Ms. E s testimony was relevant to prove that, given petitioner s pattern of behavior in the rape of Ms. E, which was substantially similar to the pattern of behav ior in this case, it w as unlikely that Ms. P . consented to the sexua l activity as petitioner had testified. The State relies on our holding in Merzbacher, 346 Md. 391, 697 A.2d 432, to supp ort its position that Ms. E. s testimony was admissible to demonstrate a lack of consent on the part of Ms. P. That reliance is misplaced. Merzbacher involved a series of sexual assaults committed by a teacher against one of his students. T he defen dant claimed those acts were consensual in nature, while the compla inant denied that claim. Over defense objections, the Circuit Court admitted -10- testimony from students other than the complainant who claimed that the defe ndant sex ually assaulted the m as we ll. We held that testim ony of the oth er students w as admissib le as an exception to Rule 5-404(b) s prohibition on prior bad ac ts or crim es evid ence. Merzbacher, 346 Md. at 411, 697 A.2d at 442. We noted that the defendant s use of frivolity and fright while running his classroom served to explain and was particularly relevant to why Murphy, either reasonab ly or unreasonably, waited so long to reveal her story to the State s Attorney s Offic e. Id. at 409, 697 A.2d at 441. Next, after noting that lack of consent may be shown by either proof of resistance or proof that the victim did not resist the aggressor because of fear, we held that the other students testimony was admissible because it supported a finding that the complainant did not resist the defendant s sexual a dvanc es beca use of fear. Id. at 411, 697 A.2d at 442. We stated as follows: Trial testimony revealed that Merzbacher s persistent and vicious conduct created a threatening environment which suggested that Murphy had little choic e but to acq uiesce in his advances. Such testimony was highly relevant to the consent issue, and was not offered to prove the defend ant s guilt based on propensity to commit crime or his character as a criminal. Id. The evidence in Merzbacher was admitted properly because the climate of fear created by the defendant explained both the contested issues of consent and the victim s dela y in reporting the sexual abuse. The State reasons that, similar to the Merzbacher circumstances, Ms. E s testimony was relevant to establish for the jury the threatening environment petitioner created when he forced Ms. P. to engage in sexual activity. C uriously, the State then seem s to switch its -11- argument from one of rebuttal of the def ense of co nsent to modus operandi, arguing that the evidence was ad missible if the circumstances between the two episo des were sufficiently similar. The Merzbacher rationale does not apply to the present case. Ms. P. reported the May 16, 2002, events immediately, and thus, Ms. E. s tes timony was not relevan t to explain any delay in reporting sexual abuse. Further, Ms. P. had never met nor heard of petitioner before that evening and knew no thing of the events to w hich Ms. E. testified. M s. E. s testimony did not, and could not, demonstrate that Ms. P. feared the defendant. The Merzbacher justifications for admitting evidence of prior sexual assaults do not apply to the instant case. The only contested issue in this case was whether Ms. P. consented to the sexual acts. The State was required to demonstrate a lack of consent on the part of Ms. P. as to the sexual activities that it alleged. Evidence that a third party did not consent to sexual intercourse with petitioner in the past has no bearing on whether Ms. P. consented to sexual activity. Ms. E. s testimony wa s irrelevant as w ell to Ms. P. s consent or lack of consent. It was in essence evidence that petitioner possessed a criminal propensity to engage in sex crimes and, as such, was inadmissible. We hold that the Circuit Court abused its discretion in admitting the testimony of Ms. E. Evidence of prior sexual assaults shows propensity of criminal activity rather than demonstrating a subsequent complainant s lack of consent; it is for this reason that such evidence is gene rally inadm issible. See State v. Alsteen, 324 N.W.2d 426, 429 (Wis. 19 82). See also G EORGE L. B LUM, Admissibility, in Rape Case, of Evidence that Accused Raped or -12- Attempted to Rape Person Other Than Prosecutrix Prior Offenses, in 86 A.L .R.5th 5 9, § 6(a), p. 184-85 (2001) (no ting that with regard to the question of admiss ibility of evidence that the accused raped or attempted to rape another woman for the purpose of demonstrating the complainant s lack of consent or the accused s use of force, the rule appears to be that . . . such evidence is inadmissible where the only issue involved is whether the act of intercourse was volu ntary ). Many of our sister courts that have not broadened their rules of evidenc e to permit propensity evidence in sexual offense cases agree with our rationale. For instance, in Com. v. Minor, 591 S.E.2d. 61 (Va. 2004), the V irginia Supreme Court considered the question of whether evidence showing that the defendant raped one or more individuals other than the victim in the crime charged was relevant to the question of whether that victim consented to sexual intercourse with the defendant. The court concluded that it was not, reasoning as follows: In our view, evidence showing that a defendant raped one or more in dividuals oth er than the v ictim in the crime charged is generally not relevant to the question whether that victim did or did n ot consen t to sexual inte rcourse w ith the defenda nt. This is so because [t]he fact that one woman was raped . . . has no tendency to prove that another woman did not consen t. Lovely v. United States, 169 F.2d 386, 390 (4th Cir. 1948). [2] 2 The Virginia Supreme Court noted, in a footnote, that the decision in Lovely v. United States, 169 F.2d 386 (4th Cir. 1948), predates Federal Rule 413. Com. v. Minor, 591 S.E.2d. 61, 68 n.2 (V a. 2004). T he court conclu ded, however, that because the evidence before it was not relevant, the new Federal Rule 413 wou ld not ch ange its conclu sion. Id. (citing Federal Rule 413 for the proposition that evidence of a defendant s commission of similar sexual offenses is admissible and may be considered for its bearing on any matter to which it is relevant ). -13- As the court in Lovely explained, evidence of other similar offenses is held adm issible for the purpose of establishing intent in cases of assault with the intent to co mmit rape . . ., and evidence of other offenses of like characte r is admissible in prosecu tions for crim e involving a depraved sexual instinct. 1 69 F.2 d at 390 . Howeve r, the court observed that the overwhelming weight of authority is that such evidence is not admissible in prosecution for rape for obvious reasons. Id. Other attempts to ravish have a tendency to show that an assault under investigation was m ade with lik e intent. Acts showing a perverted sexual instinct are circumstances which with other circumstances may have a tendency to connect an accused with a crime of that ch aracter. Id. But, as already noted, the issue of consent concerns a victim s state of mind and is uniqu e with r egard to each in dividu al victim . Minor, 591 S.E.2d at 67-68 (some internal citations and fo otnotes omitted). The Supreme Court of Louisiana addressed this issue cogently in State v. McArthur, 719 So.2d 1037 (La. 1998). In that case, the defendant contended that the complainant had consented to sexual intercourse. T he State introduced the testimony of two witnesses to rebut the defendant s consent defense. The State contended that because the defendant had attempted to rape these witnesses, their testimon y was relevan t to show th at he intend ed to rape the comp lainant. Id. at 1040. The court rejected that contention, noting as follows: In State v. Hatcher, we addressed this very issue. 372 So.2d 1024, 1034 n.1 (La . 1979) on rehe aring. There we stated: Where the only issue in a prosecutio n for rape is that of consent, other offenses are usually held inadmissible. The lack of consent by other victims is not probative of lack of consent by the complainant of the charged offense. Consistent with that principle, in State v. Ledet, we held that evidence of a prior rape against a different victim was inadmissib le in an aggravated rape trial with a consent defense to prove inten t because sp ecific intent is not an element of -14- aggravated rape. 345 So.2d 474, 479 (La. 1977) ( when th ere is no contest at all over the participation of the accused in the alleged incident, but the only question is whether any crime at all took place , evidence o f extraneo us offen ses serves o nly to establish that defendant is capable of and thus likely to have committed the crime in question, and as such the evidence is inadmissible ). This case is distinguishable from State v. Talbert, 416 So.2d 97 (La. 1982) in which we held that the defe ndant s prior rape of the same victim wa s admissible to prove the defendant s intent to hav e intercourse without the victim s consen t. To the contrary, in this case, a prior victim s lack of consent is irrelevant to the present victim s consent or lack of consen t. McArthur, 719 So.2d at 104 1 (some internal citations and f ootnotes omitted). The co urt concluded that evidence of prior sex crimes is inadmis sible whe n it is not indep endently relevan t to prov e a mate rial issue . Id. Similarly, in Alsteen, 324 N.W .2d 426, the Wiscon sin Supreme Court held that evidence of prior sexua l crimes is inad missible to prove that a subseque nt compla inant did not consent to sexual relatio ns. In that case , the trial court allow ed one w itness to testify that the defendant had sexually assaulted his eleven-year-old daughter, and a second witness to testify that the defendant had sexually assaulted her. The court held that the testimony was inadmissible and that its admission constituted reversible error, reasoning as follows: Because Alsteen admitted having sexual intercourse with [the complainant], the only issue was w hether [the complain ant] consented to the ac t. Evidence of Alsteen s prior acts has no probative value on th e issue of [ the comp lainant s] con sent. Consent is unique to the individual. The fact that one woman was raped . . . has no tenden cy to prove tha t another w oman did not consent. Thus the testimony of [the prior victims] was irreleva nt and s hould h ave be en exc luded. -15- Id. at 429 ( internal citations and qu otations omitted ). See also State v. Sweeney, 999 P.2d 296, 302 (Mont. 2000) (finding that the evidence of a prior sexual assault was admitted improper ly because it served only to prove defendant s character and to show that he acted in conform ity with that characte r); Brown v. State, 459 N.E.2d 376, 379 (Ind. 1984) (stating that where the only issue was consent of the current complainant, evidence of prior rapes committed by the defendant was not admissible because the fact that one woman was raped does not tend to prov e that another wom an did not consent to se xual activity). As to its oblique reference to modus operandi as a basis for admitting the evidence, the State fares no better. The modus operandi exception is a subset of the identity exception under Rule 5-404(b). In Faulkner, we pointed out that [i]n order to establish modus operandi, the other crimes must be so nearly identical in method as to earmark them as the handiwork of the accused. . . . The device [used to commit the crime] must be so unusual and distinctive as to be like a signature. Faulkner, 314 M d. at 638 , 552 A.2d at 900 (quoting McKn ight v. State, 280 Md. 604, 613, 375 A.2d 551, 556 (1977)) (e mphasis in original). This type of signature crime evidence is useful in identifying a defendant who claims that he was not the person who comm itted the c rime. Faulkner, 314 Md. at 638, 552 A.2d at 900. Obv ious ly, in this case, the identity exceptio n is unava ilable to the State. Identification was not a contested issue. The sole defense in the case was consent, not criminal agency. Signature crime evidence is useful in identifying a defendant who claims that he wa s not the person who c omm itted the c rime. Modus operandi does not support the -16- admission of Ms. E. s testimon y because ide ntification w as never a c ontested issu e in this case. Even assuming arguendo that identity was an issue in the case, Ms. E s testimony would not fall within an exception as a signature crime. The time lapse of twenty-one years between the two events is problematic. Further, the two incidents were not in the same location or in the same type of community. The earlier rape occurred in Baltimore City, and the instant even t occurred in a rural area, H agerstow n, some se venty miles away. In the earlier case, petitioner forced himself into Ms. E s car, whereas in the instant case Ms. P. entered petitioner s truck voluntarily. The sexual conduct in the first case occurred in the car; in the instant case, the sexual conduct occurred in a field. The discussion about prostitution and monetary compensation for sexual acts allegedly occurred only in the instant case. The two events are not sufficiently similar to constitute signature crimes having the accused s mark or a peculiarly distinctive modus operandi so that they may be said to be the work of the same person. As a final argu ment, the S tate urges tha t if Ms. E s rebuttal testimony was relevant only as evidenc e of the de fendant s propensity to commit rape, this Co urt should e xtend its holding in Vogel, 315 M d. 458, 554 A.2d 12 31, and allow evid ence of a defendant s prior rapes and sexual assaults to show s uch a pro pensity beyond th e limitations w e expresse d in Vogel. We decline to do so. -17- Vogel predates this Court s adoption of the Maryland Rules of Evidence and was predicated on the common law of Maryland.3 The question prese nted was wh ether there exists in Maryland a sexual propensity exception to the [common law] rule excluding evidence of other crimes, and the answer we gave was a qualified yes. Id. at 466, 554 A.2d at 1234. In Vogel, we addressed the admissibility into evidence of a defendant s past sex crimes. We observed that [i]t is abundantly clear that this Court has recognized the exception to the rule excluding evidence of prior crimes when (1) the prosecution is for sexual crimes, (2) the prior illicit sexual a cts are similar to that for which the accused is on trial, and (3) the same accused and victim are involved. Id. at 465, 554 A.2d at 1234. (emphas is added). We emphasized that the exce ption our p redecesso rs recogniz ed is strictly limited to those situations in which the prior sexual acts are similar to the offense for which the defendant is on trial and involve the s ame victim . Id. at 466, 554 A.2d at 1234. See also Acuna v. State, 332 M d. 65, 75, 62 9 A.2d 1 233, 123 8 (1993) (n oting that the evidence of prior offenses in Vogel was adm issible to show that the accu sed had a passion or p ropensity for illicit sexual relations with the person con cerned in the crime on trial). The State asks us now to extend Vogel, in a manner consistent with Federal Rules of Evidence 413 and 414, to allow the testimony of any third person and not limit the exception to illicit conduct with the particular person concerned in the crime on trial. Federal Rules 413 and 414 w ere enacted by the United States Congress as part of the Violent Crime Control and Law Enf orcement Act o f 1994. 108 Stats. 179 6, Pub. L. No. 103 -322 (1994). Congress 3 By Order dated December 15, 1993, this Court adopted Title 5, Evidence, effective July 1, 1994. -18- determined that the rules were necessary for the protection of the public from rapists and child molesters, finding that in child molestation cases, for example, a history of similar acts tends to be exceptionally probative because it shows an unusual disposition of the defendant . . . that simply does not exist in ordinary people. 2 J ACK B. W EINSTEIN & M ARGARET A. B ERGER, W EINSTEIN S F EDERAL E VIDENCE § 414App.01(2)(d), p. 19-20 (2d ed. 2007) (quoting 140 Cong. Rec. S12990 (daily ed. Sept. 20, 1994) (statement of Sen. Dole)). Federal Rules 413 and 414 create an exception to Federal Rule 404(b) s exclusion of propen sity evidence. See U.S. v. Blue Bird, 372 F.3d 989, 992 (8th Cir. 2004). Federal Rule 413 perm its evidence of past sex ual assault offenses when a defendant is accused of another offense of sexual assault to the extent such evidence is relevant, stating, in pertinent part, as follows: In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to whic h it is relev ant. Fed. R. Evid. 4 13(a). Fed eral Rule 414 provide s that in a case in which th e defend ant is accused of child molestation, evidence of past offenses of child m olestation is ad missible to the extent those offenses are relevant. Subject to the balancing of probative value against undue prejudice, the Rules permit propensity evidence in sexual as sault cases. See Blue Bird, 372 F.3d at 994. We interpret the Maryland Rules according to the principles of statutory construction. Nina v. Movahed, 369 Md. 187, 193, 798 A.2d 557, 561 (2002) (noting that the general -19- tenets of statutory con struction app ly to the int erpreta tion of th e Mar yland Ru les). In accord with the rules of statutory construction, we look first to the plain lan guage of the ru le. See MVA v. Shepard, 399 Md. 241, 254, 923 A.2d 100, 107-08 (2007) (quoting Oakland v. Moun tain Lake, 392 Md. 301, 316, 896 A.2d 1036, 1045 (2006)). When the language of the rule is unam biguou s, we o rdinarily lo ok no f urther th an that la nguag e. Id. Unambiguous language will be given its usual, ordinary meaning unless doing so creates an a bsurd resu lt. Id. The plain language of Md. Rule 5-404(b) does not permit the admissibility of propensity eviden ce. No analogue to Federal Rule 413 or 414 can be found in the Maryland Rules of Evidence. If the Maryland Rule is to be expanded in its scope, there is an established process to be followed. That is by action of this Court sitting in its legislative capacity, not by jud icial fiat. Furthermore, in 2004, the Maryland G eneral As sembly considered and rejected bills to admit into ev idence prio r sex crimes evidence to show p ropensity in cases involving sexual misconduct with a min or. House Bill 404 an d Senate Bill 718 were introduced in the 2004 Legislative Session, to allow a court to admit evidence of a defendant s commission of a certain separate act of sexual misconduct involving a minor in a prosecution for certain sexual offen ses invo lving a m inor . . . . Both bills received unfavorable reports and died in committee. Contrary to the United States Congress, the General Assembly and this Court have determined that prior sex crimes evidence should no t be admitted solely to demo nstrate propensity in a trial involving a different complainant. If the Maryland Rule regarding -20- propensity evidence in sex cases should be changed, the change should come from the Legislature or by this Court, sitting in its legislative capacity, exercis ing its authority to enact Rules of Pra ctice an d Proc edure a nd Ru les of E videnc e. See e.g., Trump v. State, 753 A.2d 963, 972 n.43 (Del. 2000 ) (awaiting s tudy of Fed eral Rule 413 et seq. by the Permanent Advisory Committee on the Delawa re Rules of E vide nce t o determ ine w hat changes, if an y, should be included in revising the Delaw are Rules, w hich, in general, have been patterned after the Federal Rules o f Evidence). IV. This Court has long he ld that we will not reverse a low er court s judgment if the error was h armles s. Flores v. B ell, 398 Md. 27, 33, 919 A.2d 7 16, 719 (2007). In Maryland, an error is harmless if a review ing court, up on its own independ ent review of the reco rd, is able to decl are a belie f, be yond a rea sona ble d oubt, that the e rror i n no way influenced the verdict. Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). In the case sub judice, Ms. E . testified that petitioner raped her on the date of February 2, 1981. Her testimony involved specific details of the event, including what acts were performed and the means by which petitioner coerced her actions. As we have noted, we do not admit prior crimes or bad acts into evidence primarily because of the fear that jurors will conclude from evidence of other bad acts that the defendant is a bad person and should therefore be convic ted. Harris, 324 Md. at 496, 597 A.2d at 960. W e cannot sa y, beyond a reaso nable doubt, that the inadmissible evidence did not contribute to the verdict of g uilty. The Circu it Court s decision to admit the testimony of Ms. E. was not harmless. -21- JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REM A N D E D T O TH AT COURT WITH INSTRUCTIONS TO REVERSE JUDGMENTS OF CONVICTION, AND TO REMAND THE CASE T O THE CIRCU IT COURT FOR FREDERICK COUNTY FOR A NEW TRIAL. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY FREDERICK COUNTY. -22-

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