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Acker v. State

Court of Special Appeals of Maryland

September 30, 2014


Eyler, Deborah S., Woodward, Kehoe, JJ.


Kehoe, J.

Maryland Rule 5-802.1(b) permits the introduction of a witness's prior consistent statement as substantive evidence "if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive . . . ." The Court of Appeals has interpreted this rule to include a temporal restriction, namely, that a prior consistent statement is admissible under Rule 5-802.1(b) only if "it was made before the source of the bias, interest, influence or incapacity originated." Thomas v. State, 429 Md. 85, 101-02 (2012). The issue before us is how the restriction articulated in Thomas should apply in cases in which a party, in addition to a temporally-specific allegation of bias, makes bald assertions such as that the victim of alleged child sexual abuse was "starved for attention" and therefore is inherently unworthy of belief. We conclude that factually unsupported and conclusory allegations of bias or fabrication of the sort at issue in this appeal do not trigger the Thomas restriction.

The appellant in this case is Robert Mitchell Acker, who was convicted by a jury of the Circuit Court for Montgomery County of two counts of sexual offense in the third degree.[1] He appealed and a panel of this Court affirmed his convictions in an unreported opinion. Acker v. State, No. 513, September Term, 2011, filed April 5, 2012 ("Acker I"). As we will explain in greater detail, the Court of Appeals granted Acker's petition for writ of certiorari, summarily vacated the judgment, and remanded the case to us for reconsideration in light of Thomas. Upon reconsideration, we conclude that the trial court did not err in its evidentiary rulings and again affirm the convictions.


A. The Trial

On July 11, 2010, K., at the time fifteen years old, called the Montgomery County Police and stated that she had been sexually abused by Acker on several occasions starting in 2003, when she was seven years old. Acker was eventually indicted on seven sex-related offenses, including multiple counts of sexual offense in the third degree. The case proceeded to a four-day trial by jury in the Circuit Court for Montgomery County.

A few days before trial commenced, the prosecution filed a motion in limine requesting that the trial court "make a pre-trial ruling on the admissibility of certain prior consistent statements [made by K.] to be offered by the State." In the motion, the prosecution asserted that the statements it intended to offer were admissible on several grounds, including pursuant to Rule 5-802.1(b). The court heard the motion outside the presence of the jury on the first day of trial. The prosecutor, at that time, repeated her request for "a pre-trial ruling on [the motion]" but stated, "I know it may end up becoming more of a ripe issue after the victim's testified. . . ." Defense counsel, in turn, agreed with the latter point, contending, "I think it's premature to make any judgment. We don't know what the evidence is going to be until we hear the evidence. . . ." The trial court agreed with defense counsel, concluding that, "once [the State is] in a position to call witnesses that would be [testifying as to] prior consistent statements, then we can address it at that point."

The State's case rested on the credibility of K. She testified that, on several occasions between 2003 and 2005, Acker engaged in two different types of sexual contact with her. According to K., the alleged incidents of abuse occurred at her mother's house, after the family hosted parties which involved alcohol and illicit drug use among the adults in attendance. The guests at these parties, including Acker, often spent the night, sleeping on the floor or couch in the home's living room, in order to avoid driving under the influence of drugs, alcohol, or both.

K. testified that, at first, she did nothing in response to the ongoing abuse because "I didn't know what was happening, " but that, eventually, she told several people about it in 2004 or 2005, including (in chronological order): Michael S., a neighborhood friend; Melissa, her mother; and Charlene C., her best friend from school.[2] According to K., she believed that Melissa had "gotten [Acker] in trouble" for abusing her until July of 2010, when she learned, during a heated verbal argument with her mother, that Melissa had not, in fact, called the police after learning of the alleged abuse. K. testified that she was upset that Melissa "didn't do anything, " and that she "wanted something done [about the abuse]." As a result, K. called 9-1-1 two times: first, reporting that Melissa had "abus[ed]" her;[3] and second, reporting that Acker had "raped" her several years ago. (K. clarified that, when she told others that she had been raped by Acker, she meant that he had "violated" her or touched her inappropriately). K. further testified that, as a result of, among other matters, the 9-1-1 calls and Melissa's failure to report the abuse, she and Melissa "have a difficult time getting along with each other."

Defense counsel advanced three theories as to why K.'s testimony was unworthy of belief.[4] First, in opening statement, defense counsel attacked K.'s character, contending that K. had fabricated the alleged instances of abuse because she was "starved for attention, " and, as a result, was "reaching out for attention" from both her mother and the world at large. Second, defense counsel asserted that K. had lied about the alleged abuse at the behest of her mother, Melissa, who felt "jilted" by Acker's refusal, in June of 2005, of what he perceived to be romantic overtures from her. Third, defense counsel maintained that K. had fabricated the abuse allegations in order to assist Amy R., a family friend, who was involved in a lawsuit with Acker over a real estate transaction (the suit was filed in either late 2009 or 2010). As defense counsel summarized to the jury in his opening statement, "Mr. Acker's kind of caught up in this perfect storm. He has his worst enemies pursuing him through [K.] . . . a child struggling for attention . . . ."

In an attempt to rebut one or more of these charges of fabrication, [5] the State called Michael S., Melissa, and Charlene C. to testify, over Acker's objections, that K. had disclosed the alleged incidents of abuse to them in 2004 or 2005.[6] Michael S. stated that, although he could not remember K.'s exact words, she communicated to him that Acker had "touched her" and "did inappropriate things to her, " and that, during these conversations, K. was "upset" and "crying." Melissa testified that K. "came to me and told me that [Acker] touched her one time" and that "he had put his hands on her when she was little." According to Melissa, at the time, K. was "really upset" and "it just kind of came out at the end of [a] discussion." Charlene C., in turn, testified that K. told her that "around from when she was 7 until 10, that she was being raped"—i.e., touched inappropriately—and that, during the conversations, K. was "upset" and, "several times, she would just randomly cry about it because nothing had been done."[7] The trial court admitted these prior consistent statements as substantive evidence under Rule 5-802.1(b), which, as noted above, requires that the statements be "offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive[.]"

Acker testified in his own defense. He admitted that sexual contact had occurred on at least one occasion in 2004 or 2005, when he awoke one morning to find that K. was, in his words, "dry humping . . . my hand." But he denied any responsibility for the interaction, stating that it was K. who had initiated the inappropriate contact. As to the remaining incidents described by K., Acker testified that he had never sexually abused K. and that she was lying about the allegations.

After deliberating, the jury convicted Acker of two counts of sexual offense in the third degree and acquitted him of the remaining charges. Acker was sentenced to incarceration for a period of four years, all but eighteen months suspended, with eighteen months of supervised probation to follow upon his release. In addition, Acker was required to register as a sex offender.

B. The Appeal

Acker appealed his convictions to this Court, arguing, in pertinent part, that the trial court erred in permitting Melissa, Charlene C., and Michael S. to testify regarding K.'s prior consistent statements about the alleged abuse. Applying the analysis set forth in Thomas v. State, 202 Md.App. 386 (2011), rev'd, 429 Md. 85 (2012), the panel affirmed Acker's convictions, holding that the prior consistent statements were admissible because they "were made prior to the existence of at least one of the potential motives to lie as argued by Acker—most notably, [K.'s] 9-1-1 call to police to elicit attention from her mother." Slip. Op. at 16.[8] Acker filed a petition for writ of certiorari in the Court of Appeals, presenting the following question:

Did the Court of Special Appeals incorrectly apply Maryland Rule 5-802.1(b) when it held that if a declarant had multiple motives to fabricate, the declarant's prior consistent statement was admissible at trial so long as it predated at least one of the declarant's motives?

The Court of Appeals granted the petition and summarily vacated this Court's judgment and remanded the case to us "for further consideration in light of Thomas v. State, [429 Md. 85 (2012)]."

Upon remand, we ordered the parties to re-brief the relevant issues in light of Thomas and Hajireen v. State, 203 Md.App. 537, cert. denied, 424 Md. 306 (2012), a decision of this Court interpreting Rule 5-802.1(b).[9]


There is no dispute that the prior consistent statements at issue in this appeal constitute hearsay and were inadmissible unless they satisfied the requirements of Rule 5-802.1(b) or another exception to the general prohibition against the admission of hearsay evidence. Our review of the trial court's rulings concerning the admission of ...

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