Eyler, Deborah S., Berger, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.
Ralph Sabert Choate, the appellant, was convicted by a jury in the Circuit Court for Montgomery County of one count of first degree rape and two counts of first degree sexual offense. The court imposed three consecutive life sentences. The appellant has raised four issues for our review, which we have reworded:
I. Did the court err in instructing the jury on an aggravating factor with respect to both first degree rape and first degree sexual offense?
II. Did the court abuse its discretion in denying the appellant's two motions for mistrial?
III. Did the court abuse its discretion in postponing trial beyond the Hicksdate and did the court err in denying the appellant's motion to dismiss for this reason?
IV. Did the court err in permitting a witness to testify about the victim's prompt report of sexual assault?
We shall hold that issue I is not preserved for our review and the remaining issues are not meritorious. Accordingly, we shall affirm.
The evidence adduced at trial revealed the following facts. In the fall of 2010, the victim hired the appellant to work as a handyman and to do odd jobs in her Bethesda home. He had been recommended by another contractor. The victim was satisfied with the appellant's work and she recommended his services to her neighbors. In December 2010, the appellant filled in holes in the victim's laundry room wall and promised to return later to sand and paint the wall. The victim and the appellant finally agreed that he would return to finish the job on February 5, 2011 at 8:00 a.m.
On February 5, the appellant called the victim at 6:50 a.m. to say that he was "almost at [her] neighborhood." It was unusual for the appellant to arrive that early. The victim got dressed and the appellant arrived. The victim thought the appellant was acting strangely. The appellant went to his vehicle to get supplies and the victim went to the kitchen to make tea. While the victim was in the kitchen, the appellant came up behind her and said, "let's you and me, let's get it on." This was the first time the appellant had made a sexual advance toward her. The victim told the appellant that his comment was not funny, and that he should leave. The appellant repeated that he wanted to "get it on." The victim again told the appellant to leave, and ran out of the kitchen. When the victim reached the entrance area of her home, the appellant grabbed her and pulled out a screwdriver that "had yellow on it." The victim pushed herself away, but the appellant tackled her, held her down, locked the front door, and told her to be quiet. The victim felt scared because of the screwdriver.
As they struggled, the victim told the appellant not "to do this, " and that he was a good person. She offered to give him money to leave. The appellant repeatedly tried to pull the victim's pants down, and she repeatedly pulled them back up. The appellant then said, "enough of this, " and "half carried" the victim to the living room. He forced her onto a sofa and, against her resistance, pulled off her pants and underwear. After the appellant told her that he would leave if she performed oral sex on him, the victim attempted to do so, but the appellant could not sustain an erection. The appellant then took the victim upstairs to a guest bedroom. He again forced her to perform oral sex on him, briefly performed oral sex on her, and repeatedly attempted to have intercourse with her. According to the victim, the appellant did insert his penis into her vagina.
The appellant became upset and told the victim, "don't worry, I'm not going to kill you." In an attempt to escape, the victim offered to make breakfast. They went downstairs to the kitchen. She made scrambled eggs for the appellant and put them on the kitchen counter for him to eat. She then walked out the front door and kept going until she reached an Exxon gas station and called 911.
After speaking with police officers the victim was taken to a hospital for a forensic examination, which revealed two facial abrasions and some vaginal lacerations. The time the victim might have sustained the vaginal lacerations could not be determined. Naomi Lobosco, who was accepted as an expert in forensic biology and serology, including DNA testing and analysis, testified that the appellant was identified as "the minor contributor" to a "mixed DNA profile" obtained from the interior front panel of the victim's underwear.
Officer James Herman of the Montgomery County Police Department went to the victim's home. He smelled fresh eggs and saw a plate of eggs in the kitchen. He found muddy footprints on a stairwell. The living room couch was "messed up" and the pillows were strewn about. The bed in the guest bedroom was unmade and the pillows there were also strewn about.
At 3:09 p.m. on February 5, Special Agent Larry Lee Willis of the Virginia State Police stopped a van traveling southbound on I-81 in Montgomery County, Virginia. After obtaining a search warrant, Agent Willis found documents bearing the appellant's name and a screwdriver. When shown the screwdriver during the trial, the victim testified that it "could be [the screwdriver used during the assault], but I can't swear that that's what it was."
The appellant first contends that the court erred in instructing the jury on one of the aggravating factors necessary to prove first degree rape and first degree sexual offense, because it was not generated by the evidence. Rape in the first degree requires the State to prove that a defendant 1) "engage[d] in vaginal intercourse with another by force, or the threat of force, without the consent of the other, " and 2) that the defendant did at least one of the following:
(i) employ or display a dangerous weapon, or a physical object that the victim reasonably believes is a dangerous weapon;
(ii) suffocate, strangle, disfigure, or inflict serious physical injury on the victim or another in the course of committing the crime;
(iii) threaten, or place the victim in fear, that the victim, or an individual known to the victim, imminently will be subject to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping;
(iv) commit the crime while aided and abetted by another; or
(v) commit the crime in connection with a burglary in the first, second, or third degree.
Md. Code (2002), § 3-303 of the Criminal Law Article ("CL"). Sexual offense in the first degree requires proof that the defendant "engage[d] in a sexual act with another by force, or the threat of force, without the consent of the other, " plus at least one of the same list of aggravating factors. CL § 3-305.
At trial, the appellant agreed with the State that the jury should be instructed on factors (i) and (iii) as to first degree rape, but objected to the jury being instructed on factor (ii). The State argued, and the court found, that factor (ii) was generated by the victim's testimony that, while they were struggling in the foyer area of her home, the appellant
was able to hold me down and turn around and lock the front door. And I was trying to pull and kick and scream and he just said, "You'd better be quiet." And he had this, by my neck and I was like, "No, you don't want to do this."
(Emphasis supplied). With regard to first degree sexual offense, the State again requested that the court instruct on factors (i), (ii), and (iii), and the appellant agreed. The appellant did not renew his objection to the jury being instructed on factor (ii) after the instruction had been given. On the contrary, after the judge instructed the jury, she called counsel to the bench and asked whether they were satisfied with the instructions. The appellant's trial counsel replied, "Satisfied, Your Honor."
Maryland Rule 4-325(e) ordinarily requires counsel to object to a jury instruction promptly after the court has given the instruction. The appellant relies on Bowman v. State, 337 Md. 65, 650 A.2d 954 (1994), and Gore v. State, 309 Md. 203, 522 A.2d 1338 (1987), for the propositions that substantial compliance with Rule 4-325(e) can be sufficient and that it is not necessary to renew an objection after the court has given the instructions if doing so would be "futile or useless." The appellant ignores the fact that his trial counsel agreed with the State that the jury should be instructed on factor (ii) with regard to first degree sexual offense and told the court he was "satisfied" with the instructions as they had been given.
In Robinson v. State, 209 Md.App. 174, 58 A.3d 514 (2012), cert. denied, 431 Md. 221, 64 A.3d 497 (2013), we explained the reasons why Rule 4-325(e) requires objections to be made promptly after instructions have been given:
There are good reasons for requiring an objection at the conclusion of the instructions even though the party had previously made a request. If the omission is brought to the trial court's attention by an objection, the court is given an opportunity to amend or correct its charge. Moreover, a party initially requesting a particular instruction may be entirely satisfied with the instructions as actually given.
Id. at 199, 58 A.3d at 529 (emphasis supplied) (quoting Johnson v. State, 310 Md. 681, 686, 689, 531 A.2d 675, 677, 679 (1987) (finding objection to instruction was not preserved in part because, after instruction had been given, defense counsel "specifically stated that he had 'no exceptions' to the instruction")). By agreeing with the State that the jury should be instructed on factor (ii) with regard to first degree sexual offense and by expressing his satisfaction with the instructions actually given, the appellant waived any objection and failed to preserve this issue for appellate review.
Thus, the appellant asks that we exercise our discretion to undertake plain error review. We decline to do so. We are especially disinclined to take the extraordinary step of noticing plain error where, as here, the appellant affirmatively (as opposed to passively) waived his objection by expressing his satisfaction with the instructions as actually given. Moreover, even if the appellant had preserved an objection, we would have found that the court's instructing on factor (ii) was not erroneous. All that is necessary to generate a requested instruction that is a correct statement of the applicable law and that has not been covered by other instructions is "some evidence." See, e.g., Arthur v. State, 420 Md. 512, 525-26, 24 A.3d 667, 675 (2011) (emphasis supplied). This is a "fairly low hurdle." Id. (citing State v. Martin, 329 Md. 351, 359-61, 619 A.2d 992, 996-97 (1993)). The victim's testimony that "he had this, by my neck" was sufficient evidence to generate the instruction.
The appellant next contends that the court abused its discretion in denying his two motions for mistrial made after the State's closing and rebuttal arguments.
The appellant's first motion for mistrial related to a screwdriver with yellow markings that Agent Willis recovered from the van he had stopped and searched in Virginia on the afternoon of February 5. The victim testified that the appellant had threatened her with a screwdriver that "had yellow on it." When shown the screwdriver Agent Willis had recovered, she testified that it "could be [the screwdriver used by the appellant], but I can't swear that that's what it was." The court admitted photographs Agent Willis had taken of the interior of the van, including the screwdriver, without objection. When the appellant objected to admission of the screwdriver itself, on the ground that the victim could not identify it as the particular screwdriver used in the attack, the court reminded the appellant that the photographs had already come in, and ruled that the screwdriver would be admitted as the screwdriver Agent Willis had recovered from the van. Nevertheless, the court prohibited the prosecutor from arguing to the jury that the screwdriver was the particular screwdriver that had been used in the attack.
Despite the court's ruling, the prosecutor argued to the jury in summation that the screwdriver in evidence was indeed the one used during the attack.
[PROSECUTOR]: And she [the victim] puts the tea kettle on the stove and when she turns around, the defendant is standing directly behind her. And she's startled, because she didn't even hear him come into the kitchen. And he says to her, "let's you and me get it on right here, right now." And she says, "that's not even funny, get out of my house." "No, come on, you and me, let's get it on." And she goes to run around her ...