Bible v. State

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HEADNOTE: Rodn ey Wa yne Bib le v. State of Ma ryland , No. 138, September Term, 2008 CRIMINAL LAW & PROCE DURE PRE SERVATION OF ISSUES ON APPEAL SEXUAL CRIMES SPECIFIC INTENT SUFFICIENCY OF EVIDENCE A criminal defendant was improperly convicted of third and fourth degree sexual offenses under §§ 3-307 & 3-30 8 of the C riminal Law Article, where the evidence at trial was insufficient to support a finding that he touched the victim s buttocks for the purposes of sexual arousal or gratification, as required by statute. An intimate area under these statutory provisions includes an individual s buttocks, as a reasonable person would recognize the private nature of that portion of the anatomy. However, a criminal conviction under the statute requires that specific intent be proven beyond a reasonab le doubt. Sp ecific intent may be inferred from circu mstantial ev idence, bu t that evidenc e must crea te more than a mere suspicion or probability of guilt. Here, the circumstantial evidence was inadequa te to indicate the defendant s criminal intent beyond a reasonable doubt. Additional information related to the nature of the contact would have been required, including, for example, an indication of duration or force. Also, the fact that defendant s counsel argued these issues only generally before the trial court and before the Court of Special Appeals does not necessarily mean that this Court cannot rev iew them on appea l. This Cou rt is entitled to review issues not rais ed below in order to se rve the intere sts of both f airness and judicial econ omy. Circuit Co urt for W ashington C ounty Case No. 21-K-06-38421 IN THE COURT OF APPEALS OF MARYLAND No. 138 September Term, 2008 RODNEY WAYNE BIBLE v. STATE OF MARYLAND Bell, C.J. Harrell Battaglia Greene Murphy Adkins Eldridge, John C. (Retired, Specially Assigned), JJ. Opinion by Adkins, J. Battaglia and E ldridge , JJ., join in judg men t only. Harrell and Murph y, JJ., Dissent. Filed: October 14, 2009 Petitioner Rodney Wayne Bible challenges his conviction for committing sex offenses proscribed under two sections of the Sexual Crimes subtitle of the Criminal Law Article of th e Maryland Code (2 007 Re pl. Vol.) (here inafter C L ). He c ontends th at his brief touching of a seven year old child on her buttocks on the top of her clothing was not sex ual c onta ct, w hich is define d as an in tenti onal touchin g of the v ictim 's or a ctor's genital, anal, or other intimate area for sexual arousal or gratification, or for the abuse of either party. CL § 3-301(f)(1) (emphasis added). In support of his contention, Bible submits that (1) the buttocks are not covered by the statute, and (2) the evidence produced by the State wa s not suff icien t to es tabli sh th e nec essa ry mens rea. Although we hold that the buttocks are an intimate area for purposes of the statute, we consider the evidence adduced at trial was no t sufficient to e stablish beyon d a reason able doub t that Bible inten tionally to uched th e vic tim for s exual aro usal or gr atificatio n, a nd accor ding ly, shall reverse. STATUTORY PROVISIONS Sexual offense in the third de gree is com mitted wh en an indiv idual eng age[s] in sexual contact with another if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim[.] CL § 3-307(a)(3). Sexual offense in the fourth d egree pros cribes sex ual contact w ith another w ithout the consent of the other[.] 1 CL § 3-308 (b)(1). 1 Because these offenses differ only in aspects that are not in dispute namely, that the alleged victim is under 14, that Bible is more than four years older than the alleged victim, (contin ued...) FACTS & LEGAL PROCEEDINGS Around 4:00 p.m. on August 25, 2006, seven year-old Hannah S. accompanied her mother and two siblings to the Goodwill Store in Hagerstown. Upon arriving, Hannah, without her mother or siblings, proceeded to the area of the store containing toys, which also housed furnishings and electronics. Though Hannah s mother ( Mrs. S. ) or sister periodically checked on her, the only other individuals in that area of the store while Hannah was present w ere Curtis H owell, a G oodwill employee, and the defendant forty-nine year-old Rodney Wayne Bible. Ha nnah and her family w ere in the store for a pproxim ately thirty to forty minutes. While they were in the store, Hannah did not notify anyone of a problem. When Hannah left the store and returned with her family to their car, and noticed Bible getting into the vehicle next to them, she became upset and anxious. She pointed to Bible and said to her mother, Mommy, that man s a pervert . . . [h]e touched me. Mrs. S followed Bible for a short while and record ed the ma ke, mode l, color, and lice nse plate number of Bible s car. After returning to the Goodwill Store and informing Howell of Hannah s statements, Mrs. S. proceeded to the police station and made a report of what happened. The police traced the car to Bible and interviewed him at his apartment. The police (...continued) and that there was no consent the following discussion applies equally to both sections. 2 officer later testified that when he asked Bible if he was present at the Goodwill store two days earlie r, [a]t fi rst, [Bib le] denie d that he was th ere. He wa sn t for sure [ sic] if he was there or not. An d then as w e kept talking , he did say he w as there loo king at VC Rs. Bible also said he had n t noticed a ny children in th e area of th e store in which he was shopping. During the police investigation, Hannah identified Bible in a photo array as the man who touched her in the store.2 Howell was able to identify Bible as having been present in the store, but did not observe Bible touch Hannah. Also presented at trial was surveillance video of the area in which the incident took place. However, the video did not provide continual coverage of the area because the surveillance system alternated between cameras, returning to the area in which Han nah and Bible w ere located every two to four seconds. The video showed both individuals in the area together, with Bible leaving the area at 4:29 PM, and Hannah leaving one minute later. The tape did not show any contact between Bible and Hannah. Though the State offered testimony by Hannah s mother, two police officers, and Howe ll, the only evidence regarding the touching and the surrounding circumstances was supplied b y Hannah . It is crucial to exa mine her te stimony closely: [Prosecutor]: Now at som e point while you were up there playing with that toy . . . , those toys, did you see him again? [Witness ]: Yes. 2 Though police showed Mrs. S. the same photo array before they showed it to Hannah, Mrs. S. w as unable to identify the def endant. 3 [Prosecutor]: Where was he? [Witness]: He was like walking around me. [Prosecutor]: Did you . . . , did you see his face while he was walking around you? [Witness]: Yes. [Prosecutor]: And did you keep playing with the toys? [Witness]: Yes. [Prosecutor]: Did he ever stop walking around you? [Witness]: Yes. [Prosecutor]: And what did he do? [Witness]: He like . . . , I can t remember. [Prosecutor]: Now when you say you can t remem ber, you can t remember if he stopped? [Witness]: I can t remember what he was doing. [Prosecutor]: you? [Defense]: [The Cou rt]: [Witness]: Oka y. Do you remember what he was doing w ith Objection at this point, You r Honor. Overruled. Yo u can answer. No. [Prosecutor]: Was he playing with toys? [Witness]: No. [Prosecutor]: Did he talk to you? [Witness]: No. [Prosecutor]: Well can you tell the ladies and gentlemen of the jury how close he got to you? [Witness]: He g ot lik e a fo ot aw ay. [Prosecutor]: Was he in front of you, or beh ind you, or nex t to you? [Witness]: Behind me. 4 [Prosecutor]: And when he was behind you, H annah, did anything happen? [Witness]: Yes. [Prosecutor]: Can you tell us what happened? [Witness]: He touched my behind. [Prosecutor]: Now did he touch your behind more than once? [Witness]: Yes. [Prosecutor]: Can you tell the ladies and gentlemen how he touched your behind? [Witness]: He touched it like two seconds. [Prosecutor]: Okay. Was it with his hand? [Witness]: Yes. [Prosecutor]: Okay, was it on top of your shorts? [Witness]: Yes. [Prosecutor]: And was it on top of your underpants? [Witness]: No. [Prosecutor]: Did you have sh orts . . . , did you have un derpants on under your shorts? [Witness]: Yes. [Prosecutor]: Okay, where was his hand? [Witness]: On my behind. [Prosecutor]: Okay. But over top of your shorts? [Witness]: Yes. [Prosecutor]: And your underpants were inside your shorts, right? [Witness]: Yes. [Prosecutor]: Oka y. Now you said it was about two seconds, and did he touch . . . , did he just pat you? [Defense]: Objection, Your Honor, leading. 5 [Witness]: No. [The Court]: Overruled. The witness is seven years old. There s got to be som e leeway. [Prosecutor]: Were these . . . , so these were no t two pats on the behind? [Witness]: No. [Prosecutor]: What did it feel like? [Witness]: It felt like . . . , I can t remember. [Prosecutor]: But are you sure that it was more than one time? [Witness]: Yes. [Prosecutor]: Hanna h, what did you do wh en he did th at? [Witness]: I went do wn to m y mom and we left. At the close of the State s case-in-chief, Bible moved for a judgment of acquittal of the charges of sexual offense in the third degree, sexual offense in the fourth degree, and assault in the second degree.3 He argued that because there was no evidence establishing the touching besides Hannah s testimony, and because her testimony failed to describe the touching in a sufficient manner or show that it was intentional, no reasonable juror could find his guilt beyond a reasonable doubt. The court denied the motion. Bible rested his case without presenting any evidence and again moved for a judgment of acquittal, which was also denied. The jury found Bible guilty on all charges. On appeal, Bib le argued, in ter alia, that the ev idence w as legally insuff icient to sustain his conviction for sexual offense in the third and in the fourth degree. In an unpublished 3 Mr. Bible has not challenged his conviction for assault, and we therefore do not consider it. 6 opinion, a panel of the Court of Special Appeals affirmed Bible s conviction. First, the court held that Bible had not preserved the issue of sufficiency of the evidence for appellate review because he failed in his motion for judgment of acquittal to sp ecifically argue w hich elem ents of the crimes were lacking. The court nevertheless proceeded to address the appeal on the merits and affirm the conviction, holding that there was sufficient evidence presented which could have persuaded a rational trier of fact beyond a reasonable doubt that the [Bible] s touching of the victim was intentional, was in an intimate area, and was for no purpose other than his arousal or gratification. The court based this decision upo n the facts th at Bible touched Hannah s be hind more than o nce, that the touching w as not just a pat, that Hannah s described Bible to her mother as a pervert, and that Bible initially denied to the police th at he was in the Go odw ill sto re that da y. PRESERVATION OF ISSUE ON APPEAL As a preliminary matter, the State argues that Bible s claim of insufficiency of the evidence for the charge of sexual offense in the th ird degree is not properly before this C ourt because Bible did not argue in his trial motion for acquittal which specific elements of the crime were u nsupp orted b y eviden ce. See State v. Lyles, 308 M d. 129, 135 -36, 517 A.2d 761, 764-65 (1986). Under Md. Rule 8-131(a), [o]rdinarily, the appellate court will not decide any . . . issue unless it p lainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal. In State v. Bell, 334 Md. 7 178, 188, 638 A.2d 107, 113 (1994), we held tha t an a ppellate court's review o f argume nts not raised at the trial le vel is discretionary, not mandatory. The use of the w ord 'o rdinarily' clearly contemplates both those circumstances in which an appellate court will not review issues if they were not previously raised and tho se circu mstanc es in w hich it w ill." See also Casey v. Mayo r of Rockv ille, 400 Md. 259, 322, 929 A.2d 74, 113 (2007) (discretion will be exercised infrequ ently). In Fisher v. Sta te, 367 Md. 21 8, 240, 786 A.2d 706, 719-20 (20 01), we explained: [A] principal purpose of the preservation re quiremen t is to prevent "sandbagging" and to give the trial court the op portunity to correct possib le mistak es in its ru lings. T hat purpose is not served here. Clearly, the trial court fully understood the ramifications of its decision to submit second degree felony murder, and it is a prac tical certainty that an y objection on non-cog nizability grounds that counsel might have made for the record would not have resulted in withdrawing felon y murder from the ju ry. In his motio n for judg ment, Bib le s counse l argued the following : [The victim] couldn t describe what [the touc hing] w as like . . . . [I]f somebody accidentally brushed against somebody for sake of argum ent, that in and of itself w ouldn t be . . . , it s not an intentio nal act. It w ould be , I guess, an in advertent a ct. Without her in some affirmative way saying that she was grasped as opposed to merely touched, I would suggest to the Court that there s no t really evidence of an inten tional act having occurred at that point. There s just no evidence of it one way or the other. At the close of all evidence, Bible simply incorporated his previous arguments. Thus, although Petitioner did not refer to the requirement that the touching be for the purpose of 8 sexual arousal or gratification, he argued generally that the intent requirement was not satisfied . Shortly thereafter, the trial co urt gave ins tructions to the jury, including sp ecific requireme nts for proof of each off ense. With respect to bo th the third de gree and f ourth degree sex offenses, the judge instructed, that [s]exual contact means the intentional touching of the victim s intimate parts for the pur pose o f sexu al arous al, or for gratifica tion, as require d by CL § 3-30 1(f)(1) . This instruction certainly reflects that the trial court knew that both third degree sexual contact and fourth degree sexual contact required this proof of sexual intent when it denied Bible s motion for judgment of acquittal and allowed the case to go to the jury. Unde r these circum stances, w e do not vie w consid eration of th is issue on appea l as san dbagg ing the trial cou rt. The Court of Special Appeals recently addressed a comparable non-preservation argument in Williams v. State , 173 Md. A pp. 161, 167-68, 91 7 A.2d 1213 , 1217 (2007). There, where the appellant was charged for failing to return a rental car, appellant's counsel argued: Judge, the questio n is whether or not - the statu te is fairly specific, the State has to prove that the defendant refused or willfully neglected to return the vehicle. I think the evidence is he knew - they were in constant contact - he was going to bring it back. One of the vehicles was in the possession of the defenda nt. That vehicle was returned. They got the vehicle from the police. I think there is some missing link. 9 Id. The court considered the issue of mens rea to be preserved even though counsel failed to mention intent or mens rea: In context, it seems rather clear that, in transcription, "not" was omitted from the third sentence. In essence, counsel argued that one of the vehicles was not in appellant's possession and that he intended to return the othe r vehicle s. While counsel did not specifically mention intent or mens rea, the argu ment, in context, appears to relate to appellant's intent or state of mind. Conse quently , we sh all review appellan t's content ions on their merits. Id. at 168, 9 17 A.2 d at 121 7 (emp hasis ad ded). Here, defense counsel s general argument that the State failed to prove that the touching was intentional, without mentioning the sexual aspect o f the inte nt, calls f or simila r treatme nt. Fairness and the inte rests of judicial econ omy also gu ide our dec ision to cons ider this issue. In Moosa vi v. State, 355 Md. 651, 736 A.2d 285 (1999), we addressed an issue not raised in the Court of Special Appeals in order to avoid an inevitable successful postconviction proceeding. We explained our rationale: [I]f [the criminal offense charged] is clearly inapplicable to [a defendant s] conduct, and if the only reason for not reversin g his conviction is the failure of appellate counsel to raise the issue in the Court of Special A ppeals, und er the circum stances of this case [a defenda nt] would be entitled to re lief in an app ropriate post conviction proceeding collaterally attacking his conviction. In light of this, fairness and interests of judicial economy justify granting relie f on direct a ppeal. Id. at 661- 62, 736 A.2 d at 290. Here, if we were to refuse review of this issue because Bible s counsel failed to explicitly refer to proof of sexual inten t in his motion for judgment 10 of acquittal, Bible would likely be entitled to post-conviction relief in light of our holding on the merits. 4 The same is true of counsel s failure to argue lack of intent with respect to sexual offense in the third degree, despite his arguing it with respect to the fourth degree.5 The State also avers that we should not decide whether the buttocks is an intimate area within the meaning of the statute. As we indicated before, we have discretion under Rule 8-131 (a) wh ether to r eview an issue not raise d below . As we indicated in Jones v. State, 379 Md. 704 , 714-15, 843 A .2d 778, 784 (200 4): There is no fixed formula for the determination of when discretion should be exercised, and there are no bright line rules to conclude that discretion has been abused . . . . [W]hen presented with a plausible ex ercise of this discretion, ap pellate courts should make two determinations concerning the promotion or subversion of 8-131(a) s twin goals. First, the appellate court shou ld consider whether the exercise of its discretion will work unfair preju dice to either of the p arties . . . . Second, the appellate court should consider whether the exercise of its discretion will promote the orderly administration of justice. We see no pre judice to eithe r of the partie s in address ing the issue of whether the buttocks are an intimate area within the meaning of CL § 3-301(f)(1). Bible, of course, raises the issue, and therefore has waiv ed any prejud ice. The Sta te has no inte rest in precluding resolution o f this issue. R eaching th e issue doe s not impair th e orderly 4 The omission of this specific point could not be considered a strategic decision by counsel, as n othing cou ld be gaine d by it. 5 We surmise that counsel assumed that there was no intent requirement with respect to sexual offense in the third degree because that crime includes the four-year age differential as one of its elements. 11 administration of justice, as we are not reve rsing on an issue the trial court lacked an opportun ity to decide because our conclusion favors the con viction e ntered b elow. Further, deciding this question will provide guidance to trial courts, w hich are likely to be faced with the issue in other c ases , as w ell as to law yers a nd th e public g ener ally. Thus, altho ugh Bib le did not raise the issue of whether buttocks are an intimate area, we exercise our discretion under Rule 8-131(a) to reach that issue. In sum, w e shall reach the merits of the two issues on which certiorari was granted: (1) whether buttocks are an intimate area within the meaning of CL § 3-301(f)(1), and (2) whether the evidence adduced at trial was sufficient to support a finding, beyond a reasonab le doubt, that Bible touched the victim s buttocks for the purpose of sexual arousal or gratif ication. INTIMATE AREA UNDER THE STATUTE We recently restated the principles that guide a court when interpreting a statute. In construing a statute, we look first to the plain language of the statute, and if that language is clear and unambiguous, we look no further than the text of the statute. A plain reading of the statute assumes none of its language is superf luou s or n ugatory. We neither add nor delete words to a clear and unambiguous statute to give it a me aning not reflected by the words the Legislature used or engage in forced or s ubtle interpre tation in an attempt to extend or limit the statute's meaning. We have often stated that if the language of the statute is not ambiguous, either inherently or by references to other relevant laws or circumstances, our inquiry as to legislative intent ends. If the meaning of the plain language is ambigu ous or unc lear, to discern legislative inten t, we look to the le gisla tive h istor y, prior 12 case law, the purposes upon which the statutory framework was based, and the statute as a whole. Bost v. State, 406 Md. 341, 349-50, 958 A.2d 356, 361 (2008) (quotation marks and citations omitted). The lan guage of the statute itself is the primary source of [legislative] intent; and the words used are to be given their ordinary and popularly understood meaning, absent a manifest contrary legislative intentio n. Williams v . State, 329 Md. 1, 15, 616 A.2d 1275, 1282 (1992) (quotation marks and citation omitted). We have also, when examining the meaning of a particular statute or phrase, considered the judgments of other jurisdictions and their treatme nt of sta tutory pro visions analog ous to th ose in M aryland la w. See, e.g., Stachowski v. Sysco Food Servs. of Baltimore, Inc., 402 Md. 506, 528-31, 937 A.2d 195, 207-09 (2007) (reviewing federal law and the law of sister states in deciding the meaning of a phras e unde r the M aryland W orkers Com pensat ion Ac t). CL Section 3-301(f)(1) proscribes touching the genital or anal areas,6 but does not otherwise specify what constitutes an intimate area[.] As no other statutory provision defines the term, w e assume the legislature intended the word intimate to be understood as it is in common parlance. Intimate is commonly defined as [v]ery personal; private[.] See, e.g., T HE A MERICAN H ERITAGE D ICTIONARY OF THE E NGLISH L ANGUAGE 917 (4 th ed., Houghton Mifflin Co. 2006). Private, in turn, is defined as [s]eclud ed from th e sight, presence, or intrusion of others[.] Id. at 1396. Certainly a reasonable person would consider 6 The State does not contest that the buttocks are n ot included within a pe rson s genital or anal areas. 13 the buttocks to be very personal and would find unwanted contact with that area to be particularly intrusive. Our society generally treats the buttocks as an intimate area of an individual s body. Usually, this part of the body is kept covered in public, and indeed in most private contexts. Community standards of decency are not static, and we recognize that in some settings, fashion and public propriety tolerate greater exposure of the human bod y, including portions of the buttocks, than was permitted in the pa st. Nevertheless, we are confident that society still gene rally considers the buttocks to be private areas an individual would not expect to be casually touched, even by a friend. These commu nity standards ar e reflected in Maryland le gislative enac tments. The Maryland General Assembly has treated touching of the buttocks as prohibited sexual conduct in other sections of the Criminal Law Code. In title 11 of the Maryland Criminal Law Article, w hich governs inde cenc y and obsc enity, the legislature defined sexual conduct as any touching of the genitals, buttoc ks, or pubic areas of an individual; o r breasts of a female in dividual. C L § 11-1 01(d)(3); see also CL § 3-902(a)(4) (defining [p]rivate area of an individual in the statute proscribing visual surveillance with prurient intent as the naked or unde rgarment-clad genitals, pubic a rea, buttocks, or female breast of an individual. ). We have also suggested in our past precedent that generally the buttocks were an intimate area of the body. In Paulino v . State, 399 Md. 341, 924 A.2 d 308 (20 07), we h eld that a law enforcement officer was unreasonable in his search of a criminal defendant. The 14 officer manipulated the cheeks of the defendant s buttocks to obtain a better view of the defendant s anal cavity in order to determine if the defendant was hiding drugs th ere. Id. at 346, 924 A.2d at 311. The majority distinguished the cases cited by the dissent that suggested the search was reasonable by noting that the searches conducted in those cases d[id] not relate to the manipulation of the intimate parts of a suspect s person. Id. at 354, 924 A.2d at 316 n.4. Although this opinion did not involve an interpretation of the phrase intimate areas in CL § 3-301, it does support the assertion that the buttocks have been regarded by this Court as an intimate part of the human body in the common usage of that word. Other jurisdicti ons ha ve statu tes, like Maryland s, which u tilize the general term intimate parts o r a simila r phrase . See, e.g., Ala. Code § 13 A-6-60(3) (2009 ) (defining sexual contact as [a]ny touchin g of the sexual or other intimate parts of a person not married to the actor, done for the p urpose of gratifying the sexua l desire of either party ); Haw. Rev. Stat. § 707-700 (2009) ( Sexual contact means any touching . . . of the sexual or other intimate parts of a person not married to the actor, or of th e sexual or o ther intimate parts of the actor by the person, whether directly or through the clothing or other material intended to cover the sexual or o ther intimate p arts. ); see also Mont. Code Ann. § 45-2101(67) (2007); N.Y. Penal Law § 130.00(3) (2009); Or. Rev. Stat. § 163.305(6) (200 7); Wash. Rev. Code § 9A.44.010(2) (2009). In several of these states, courts have interpreted 15 intimate parts to include the butto cks. See, e.g., State v. Weese, 616 P.2d 371, 374 (Mont. 1980); People v . Boykin, 513 N .Y.S.2d 310, 31 1 (N.Y . App. D iv. 1987 ). In addition, other jurisdictions courts have held the buttocks to be an intimate area. The Court of Appea ls of Washington has determined that the buttocks, as well as the hips, were covered by their statute because they were sufficiently intimate part[s] of the anatomy that a person of common intelligence has fair notice that the nonconsensual touching of them is prohibited . . . . In re Adams, 601 P .2d 995 , 997 (W ash. Ct. A pp. 197 9). The Oregon Court of Appeals, in affirming a conviction for sexual abuse where a defendant touched a victim s buttocks, held that the buttocks were an in timate area because the victim in that case considered them intimate and any reasonable person would have recognized the implication of suc h conta ct. State v. Stacy, 830 P.2d 624, 625 (Or. Ct. App. 1992). In Parker v . State, 406 So.2d 1036, 1039 (Ala. Crim. App. 1981), the A labama C ourt of C riminal Ap peals held that the term intimate parts . . . . refers to any part of the body which a reasonable person would consider p rivate with re spect to touching by another. We believe that the thigh and the stomac h are . . . inti mate p arts . . . . We are n ot aware o f, nor has M r. Bible drawn our attention to, any court that has interpreted the phrase intimate areas in a sexual crimes statute to exclude the buttocks. After considering all of the above, we conclude that the buttocks are an intimate area within the meaning of CL Section 3-301(f)(1) because a reasonable person would recognize 16 the extremely personal nature of that part of the a natomy. Th e touching of the butto cks is therefore proscribed by CL Sections 3-307(a)(3) & 3-308(b)(1). LEGAL SUFFICIENCY Our standard of review for sufficiency of trial evidence is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonab le doubt when the evidence is presented in the light most fa vorabl e to the S tate. Jackson v. Virginia, 443 U.S. 307, 319, 99 S . Ct. 2781, 2789 (1979) (citation omitted) (emphasis in original). The jury as fact-finder possesses the ability to choose among differing inferences that might possibly be made from a factual situation and [the appellate co urt] must giv e deferen ce to all reasonable inferences [that] the fact-finder draws, regardless of whether [the appellate court] would have chosen a different reasonable inference. State v. Suddith, 379 Md. 425, 430, 842 A.2 d 716, 71 9 (2004) (c itations and f ootnote om itted). If the evidence either showed directly, or circumstantially, or supported a rational inference of facts w hich could fairly convince a trier of fact of the defendant's guilt of the offenses charged beyond a reasonab le doubt[ ,] then w e will af firm the convic tion. State v. Stanley, 351 Md. 733, 750, 720 A.2d 32 3, 331 (19 98). These principles are simpler in fo rmulation th an they are in application. When reviewing findings made by a trier of fact, there is a fine line between the improbab le yet permissible inference and the legally unsupporta ble specula tion. This distinction is all the more difficult in crim inal cases, w here the req uirement th at guilt be 17 proved beyond a reasonable doubt is somewhat at odds with the deference owed to a factfinder s determinations. Because intent is subjective and, without the cooperation of the accused, cannot be directly and obje ctive ly proven, its presen ce must be shown by established f acts which permit a proper inference of its existence. State v. Sm ith, 374 Md. 527, 536, 823 A.2d 664, 669 (2003). Circumstantial evidence is sufficient to sustain a conviction, but not if that evidence amount[s] only to strong suspicion or mere probability. Taylor v. S tate, 346 Md. 453, 458, 697 A.2d 462, 465 (1997). By definition, circumstantial evidence requires the trier of fact to make inferences, but those inferences must have a sounder basis than speculation or conjecture. Id. This is wh y this Court ha s held that w hen the ev idence eq ually supports two versions of events, and a finding of guilt requires speculation as to which of the two versions is correct, a conviction cannot be sustained. Id; see also W ilson v. State, 319 Md. 530, 573 A.2 d 831 (19 90) (holdin g that the facts that a housekeeper had access to and cleaned the area from which property was stolen were insufficient to support a conviction for theft). Bible argues that the evidence established that he intentionally touched Hannah, but does not prove that he did so with the purpose of sexual arousal or gratification. The phrase in CL § 3-301(f)(1) that prohibits contact for sexual arousal or gratification, or for the abuse of either party establishes a specific inten t requireme nt. Thus, the State must prove two elements beyond a reasonable doubt: (1) the fact of the touching, and (2) the intent to do so for sexual arousal or gratification. T here is no d oubt that the re is 18 sufficient evidence that a touching occurred Hannah testified that Bible touched her on her buttocks on top of her clothes. The matter o f Bible s intent is more p roblem atic. No presumption of intent may be raised by law from an act. Thornton v. State, 397 Md. 704, 714, 919 A.2d 678, 683 (2007) (quoting Morissette v. United States, 342 U.S . 246, 274, 7 2 S. Ct. 240 , 255 (195 2)). With respect to specific intent crimes, generall y, there are two components to every crime, the actus reus or guilty act and the mens rea or the guilty mind or mental state accompanying a forbidde n act . . . . [T]he S tate must prove that the defendant acted with a specific intent . . . [T]he substantive mental element, . . . can be proven by direct or circumstantial evidence[.] Thornton, 397 Md. at 714, 919 A.2d at 683 (citations and quotation marks omitted). As we have explained, specific intent is not simply the intent to do the immediate act but embraces the requirement that the mind be consc ious of a m ore remote purpose or design w hich shall ev entuate from the doing of the immedia te act . . . . [Specific intent crimes ] require[] n ot simply the general intent to do the immediate act with no particular, clear or undifferentiated end in mind, but the additional deliberate and conscious purpose or design of accomplishing a very specific a nd more remote resu lt. Id. Evidence sufficient to support a finding that a touching was done with the purpose of sexual arousal or gratification may be deduced from the circumstances surrounding the touching, or from th e character o f the touch ing itself. Circumstances surrounding the 19 touching that would aid in the de termination of wh ether it was for the purposes of sexual gratification might include whether the defendant and victim were strangers or knew each other; whether either party was undressed; whether anything was spoken between them; whether the touching occurred in public or in a secluded area; whether the defendant displayed any signs of sexual arousal; or whether the defendant behaved in nervous or guilty manner when another person ca me upon the scene. W ith respect to the touching itself, the force of the touching, the motion (was it a pat, a rub back a nd for th, a circu lar motio n, a brush), the duration , and the fre quency are a ll important. This list is not exhaustive, but merely de scriptive of the typ e of circ umstan tial evide nce tha t would be relev ant. The State has not cited any cases where a sexual contact conviction withstood appellate review based on such slim evidence establishing intent as is presented here. Neither has our research uncovered any cases, with respect to either Maryland or other jurisdictions, in which th e evidenc e used to establish the defendant s specific intent was as sparse as the circumstantial evidence presented in this case. Where other jurisdictions have upheld convictions, the evidence p resented provided stronger support for an inference of sexual arousal. In a Connecticut case, the fact that the defendant rubbed his hands over [the victim s] genital area in a back an d forth mo tion[,] and that the defe ndant w aited until another adult was out of the room to do so was sufficient evidence to sustain the conviction. State v. Michael H., 970 A.2d 113, 118 (Conn. 2009). Similarly, the New York A ppellate Division found the facts that a defendan t waited until he was alon e with a victim before 20 placing his hand on her buttocks, stared at her while doing so, and followed the victim when she left the room, adequate to support a conviction. See People v. Stewart, 870 N.Y.S.2d 157, 160-61 (App . Div. 2008). Finally, in State v. Guy, 212 P.3d 1265, *3-*4 (O r. Ct. App. July 15, 2009), the Oregon Court of Appeals found sufficient the evidence that the defendant touched the victim s breasts for as long as ten seconds, lay in bed with the victim while she was wearing only underwear, and told the victim that she had a very beautiful [sic] propo rtioned body. In the present case, Hannah stated that Bible touched her for like two seconds twice and expressed to her moth er that Bible was a pervert. B eyond that, neither we nor the jury know anything else a bout the circ umstance s of the incid ent. Hann ah was n ot able to remember or articulate the character o f the touch ing. She did not say whether it was a rub, a squeeze, or a pat. She was not able to say where on the buttocks Bible touched her. She testified that Bible did not say anything to her; nor could she see what he was doing behind her. We are presented with no statement by him suggesting sexual intent, no indication of his sexual arousal, no other conduct by him suggesting a sexual interest in the child. There is certainly suspicion that when Bible touched Hannah, he did so for sexual arousal or gratif ication. B ut susp icion is n ot suff icient fo r convi ction. See Taylor, 346 Md. at 458, 697 A.2d at 465. We do n ot doubt fo r a mome nt that Han nah wa s truly upset by the incident at issue in this case. When we are dealing with the charge of a sexual offense against a child, it is tempting to allow suspicion to substitute for sufficient proof, because of 21 the offensive nature of such a crime, and our d esire to protec t children. B ut we mu st remain faithful to the rule of law, and here the law requires that the defendant s sexual intent be proven beyond a rea sonable doubt. The State s burden of proof is not inverse ly proportionate to the age of its witness. The evidence at trial established that Bible touched Hannah on the buttocks, and that Hannah was sufficiently upset by it to call him a pervert when speaking to her mother in the car. He later denied to the police that he was in the store that day, a circumstance that adds a smidg en to the suspicio n. But there are many other reasons Bible could have lied to the police about his actions, including a fear that he w ould be charged with shoplifting or some other crime. M any people f ear involv ement w ith the police. Yet without some other evidence that the touching was for the purposes of sexua l gratification o r arousal, the proof was legally insufficient to sustain the petitioner s conviction for sexual offenses in the third and fourth degrees. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO REVERSE THE CONVICTIONS FOR THIRD AND FOURTH DEGREE SEXUAL OFFENSES AND TO REMAND THE CASE TO THE CIRCUIT COURT FOR WASHINGTON COUNTY FOR R E-SENTENCING ON THE CONVICTION FOR A SSAULT . COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY WASHINGTON COUNTY. Judg es B attag lia an d Eld ridge join in judgm ent o nly. 22 IN THE COURT OF APPEALS OF MARYLAND No. 138 September Term, 20008 RODNEY WAYNE BIBLE v. STATE OF MARYLAND Bell, C.J. Harrell Battaglia Greene Murphy Adkins Eldridge, John C. (Retired, specially assigned), JJ. Dissen ting Op inion b y Harrell, J ., which Murphy, J., joins. Filed: October 14, 2009 It took the W ashington County jury in this case 30 minutes to decide that Bible, a 49year-old man, touched the buttocks of a 7-year-old female victim (while she was unescorted at the time and in the toy section of a store), for his sexual arousal or gratification, or to abuse the victim. The victim kne w his conduct w as wrong . Twelve jurors in W ashington County quickly recogn ized tha t it was w rong. I submit that any reasonable juror would know it was wrong. The C ourt of Specia l Appe als agre ed. Bible and the Majority see it otherwise (I refer here to Majority as encompassing also Judges Battaglia and Eldridge who join the judgment only. This leaves the opinion , however, as a plurality expression of views of only 3 judges of the Court). Worse yet, the Plurality opinion elects to superimpose its view of the evidence on that of th e finder-of -fact. I am co mpelled to dissent. At the threshold, I give the Devil its due. The Plurality opinion is a well-crafted and rational-sounding (and therefore beguiling) piece of judicial writing. It explains and attempts to justify (as well as I imagine is p ossible) its reversal of Bible s conviction. I cannot give it high marks, however, for reaching the obviou s conclusio n (with w hich I agree ) that a person s posterio r can be an intim ate area (even f or peop le who flaunt th eirs). It is the Plurality opinion s legal sufficiency analysis, howe ver, where the train really runs off the tracks (Plurality slip. op. at 17-22). After paying lip service to the fact-finder s discretion to draw reasonable inferences from direct and c ircumstantia l evidence a nd an app ellate court s duty to render a disciplined and deferential re view of th e exercise o f that discretion (Plurality slip op. at 1 7), the Plurality opinion glides effo rtlessly into second-guessing the Washington County jury here. Drawing on what we said in Thornton v. State, 397 Md. 704, 714, 919 A.2d 678, 683 (2007), about proof of specific intent, the Plurality opinion conflates identifying a presumption of intent (a bad thing) with drawing an inference of mens rea from circumstantial evidence (a permitted thing). Plurality slip op. at 19. Characterizing the fact-finder s ability here to draw an inference from the evidence as at best one of speculation o r suspicion as to Bible s m ore remote purpo se or de sign . . . [for] doing of the immediate act, to wit, touching Hannah s buttocks for sexual arousal or gratification (Plurality slip op. at 21), the Plurality opinion supplants its rationalized Olympian view of the evidence for that of the rank-and-file body entrusted with that primary task. I cannot po int too emp hatically to the Plurality s ignoring of context. Hannah was not hanging by her jump rope from a pr ecipice as B ible reached up to push her to safety, w hile touching her behind. He was not steadying her from a bad tumble because she lost her balance. With her mother and siblings elsewhere in the store, she presumably was safe and secure in the toy section of the Hagerstow n Goodw ill Store when Bible offensively initiated touching of one of her intimate areas for his purposes. By a rational process of elimination in this context, a r easonab le jury could conclude, beyond a reasonable doubt, that he did so solely to gratify or arouse his prurient sexual interests. Indulging in spinning out theories of possibly benign mo tives for his conduct in these circumstances is not productive or something in which appellate courts should engage. The jury did its job. A reasonable jury could have (and apparently did) infer the requisite specific intent -2- for the crim e from B ible s lying initially to police whether he was even at the crime scene. See Kolker v. S tate, 230 Md. 157, 159, 186 A.2d 212, 213 (1962) (quoting Hayette v . State, 199 Md. 1 40, 145 , 85 A.2 d 790, 7 92 (1952) ( [O]n questions of scienter reason for disbelieving evidence denying scienter may also justify finding scienter. )). Moreover, the evidence here does not generate a disputed issue as to a benign reason for why this defendant deliberately would make unsolicited physical contact with his hand on an intimate portion of the minor s body. The conviction should stand. Judge M urphy autho rizes me to sta te that he joins in this dissent. -3-

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