Appeal from the Circuit Court for Montgomery County. Sharon V. Burrell, JUDGE
ARGUED BY: Miriam Z. Seddiq of Fairfax, VA. (Thomas A. Pavlinic of Annapolis, MD) all on the brief FOR APPELLANT
ARGUED BY: Sarah P. Pritzlaff (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD. FOR APPELLEE
ARGUED BEFORE: Krauser, C.J., Graeff, Hotten, JJ. Opinion by Graeff, J.
[220 Md.App. 311] Graeff, J.
A jury in the Circuit Court for Montgomery County found Larry Reece, appellant, guilty of the following crimes: sex
abuse of a minor (Count 1); second-degree sexual offense, fellatio on a minor (Count 2); second-degree sexual offense, making a minor perform fellatio on appellant (Count 3); and second-degree sexual offense, performing anal intercourse on a minor (Count 4). The court sentenced appellant as follows: 15 years on the conviction for sex abuse of a minor; 10 years, consecutive, on the conviction for second-degree sexual offense, performing fellatio on a minor; and 10 years, concurrent, on each of the other two convictions for second-degree sexual offense.
On appeal, appellant presents three questions for our review, which we have reordered and rephrased slightly, as follows:
1. Did the circuit court err in failing to conduct a sufficient hearing before it admitted child hearsay testimony through Dr. Shukat?
2. Did the circuit court err in admitting the minor's testimony without allowing appellant to challenge the reliability of the minor's testimony?
[220 Md.App. 312] 3. Did the circuit court err in permitting the State to alter the time frame specified in the indictment after the trial had begun?
For the reasons set forth below, we answer these questions in the negative, and accordingly, we shall affirm the judgments of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
R.M., who was seven years old in December 2012, lived with his mother and father, Mrs. M. and Mr. M., his three older sisters, J.M., C.M., and M.M., and his uncle. They lived next door to appellant, who was 65 years old at the time of trial, for several years. Appellant had dinner with the M. family once a week, and R.M. went to appellant's house, where he and appellant would play games, watch television, and practice using guns. On some occasions, R.M. went to appellant's house alone, and on other occasions, he went with M.M. R.M. referred to appellant as his " buddy."
R.M. testified that appellant first touched him, on what R.M. identified as his " front and back private," in appellant's locked bedroom. R.M. recalled appellant " grabbing money to go to the pool," but then saying " [w]hy don't we do something before we go?" When R.M. asked " what," appellant took off his clothes and " did the F-word to me." Appellant used his hand to touch R.M.'s front private and used his front private to touch R.M.'s back private. R.M. stated that it " felt weird."
On another occasion, while M.M. also was in the house watching a movie, appellant used his mouth to touch R.M.'s front private in appellant's bathroom. Another incident occurred when R.M.'s cousin, B.H. went to appellant's house with R.M. Appellant told them to come into his bedroom. Appellant told B.H. to take off his clothes, but B.H. said no and argued with appellant.
[220 Md.App. 313] R.M. described another incident in appellant's bathroom where he put his mouth on appellant's front private. R.M. described appellant's front private as " hairy," and he said it tasted like " rotten cheese."
After R.M. reported the abuse to his mother, she took him to the hospital. Initially, he did not tell the doctors what had happened with appellant because he " was crying a lot." It was not until after his
mother calmed him down that he could tell the doctors what had happened. R.M.'s oldest sister, J.M., told R.M. to tell the truth.
M.M., who was thirteen years old at the time of trial, testified that she met appellant when she was six years old and R.M. was a newborn. Appellant was like a " grandpa" to the M. children. He would do everything with them that a grandpa would do, such as play outside, go to the park, and watch television. In the summer of 2011, R.M. and M.M. sometimes would be alone with appellant at his house. On one occasion, appellant told M.M. that R.M. liked to jump on him and play on his bed. M.M. described one incident at appellant's house in the summer of 2011, when R.M. asked her to help him in the bathroom, but appellant stopped her and told her that he was going to do it. M.M. stayed in the living room. In another incident, the entire M. family went to the fair with appellant, and when appellant was leaving, he kissed R.M. on the mouth, which M.M. thought was unusual.
R.M.'s father noticed some unusual behavior between appellant and R.M. in the summer of 2011. On one occasion, at the fairgrounds, he observed appellant kiss R.M. on the mouth. On another occasion, after the M.s returned from a trip to South Carolina, appellant was in R.M.'s bedroom with the door locked. Another time, two or three months prior to R.M.'s disclosure of the abuse, Mr. M. came home from work and inquired as to R.M.'s whereabouts. His wife told him that R.M. was with appellant, and when he went to appellant's door and knocked, it took appellant " longer than usual," a " minimum of two minutes," to open the door.
[220 Md.App. 314] That summer, R.M. told his father that his testicles hurt. Mr. M. noticed that R.M. was walking and sitting differently. Three or four days later, on August 22, 2011, the M.s took R.M. to the doctor.
R.M.'s mother testified that she asked appellant to babysit R.M. and M.M. on three occasions that summer. R.M. also went to appellant's house alone on a few occasions, although he usually went with M.M. On one occasion, R.M. and M.M. went to appellant's house to play, but appellant sent M.M. home, saying that he was " going to dedicate an hour to" R.M.
On August 20, 2011, R.M. pointed to M.M.'s crotch and said the word " pussy." When J.M. asked where he learned that word, R.M. " became very nervous and just said forget it."
The following morning, August 21, while Mrs. M. was giving R.M. a bath, R.M. complained to her that his testicles hurt. She asked him why, and R.M. responded that appellant had put R.M.'s privates in his mouth and pulled them, telling R.M. that he was giving him a massage. R.M. also reported that appellant would put his private parts in R.M.'s behind and in his mouth, and appellant told R.M. that it was okay for appellant to touch him there.
On August 22, Mrs. M. took R.M. to the pediatrician. They then went to Shady Grove Hospital for a sex abuse forensic evaluation. R.M. was nervous because appellant told him that he would be arrested if he said anything. After the doctor told R.M. that if he did not want to speak to her, she would let the police come, R.M. became more scared and said that he would talk to the doctor.
J.M. recorded R.M.'s statements to the doctor at the hospital. She testified that she did so because she wanted the physical evidence.
R.M. did not want to stay at the hospital, and he kept asking to go home. J.M. told her brother to tell the truth. At [220 Md.App. 315] certain points in the recording, R.M. said " no" to questions about whether R.M. had ever touched any part of appellant with his mouth and whether appellant had ever touched R.M. " where he pooped from." When R.M. responded " no" to those questions, J.M. told him that he needed to tell the truth. R.M. told her that he was answering " no" because he did not want to get appellant in trouble. Eventually, R.M. revealed that appellant had sucked on his testicles and had kissed him on the mouth.
On August 24, 2011, R.M. was referred to Dr. Shukat, a pediatrician with a specialty in child abuse and the medical director of The Treehouse Child Assessment Center. Dr. Shukat testified that R.M.'s parents were first alerted that there may be an issue after R.M. used the word " pussy," a word that the M.s never used. In conducting her examination, Dr. Shukat explained to R.M. that she was a doctor, and it was her job to talk with him and examine him. She asked R.M. open-ended questions about whether he had ever been touched or hurt in a way that he did not like, to which R.M. " stated immediately" that appellant had touched him with his hands and mouth on his penis and testicles. R.M. stated that appellant's penis went into his " butt," and appellant pushed R.M.'s head down toward his genitals and told him to suck his genitalia. R.M. stated that appellant would also perform the same oral manipulations on R.M.'s genitals. Appellant also showed R.M. pornography, with naked men together and naked men and women together. R.M. described appellant " put[ting] his penis in my butt" as " doing boy stuff," stating that he did not like it and wanted to play normally.
R.M. told Dr. Shukat that he had scrotal pain, in association with appellant sucking his genitalia, and he had pain in his " butt." Upon physical examination, Dr. Shukat discovered two fissures, superficial tears in the skin, along R.M.'s anal opening. Anal fissures are unusual in boys without a history of sexual abuse. R.M. showed Dr. Shukat with his own hands how appellant would manipulate his penis, and he described appellant ejaculating, which he called " white stuff." When he described appellant penetrating R.M.'s anus with his penis, he [220 Md.App. 316] told Dr. Shukat that " it went in." Dr. Shukat described R.M. as " serious" and " very factual" when talking to her, stating that " [y]ou could tell that he did not like what had happened to him." R.M. reported that appellant told him to keep what appellant was doing to him a secret, or appellant would get in trouble.
On cross-examination, Dr. Shukat agreed that she did not have knowledge regarding prior discussions that R.M. had with his family members. She was not aware that R.M. had been at Shady Grove Hospital two days prior to her examination.
R.M.'s cousin, B.H., testified that he visited the M.s often in the summers, and he stayed with them for a few weeks in the summer of 2011. He knew appellant from his visits with the M.s, and he said that appellant would teach the children how to play sports and shoot weapons. Appellant always kept snacks in his house for the children.
On one occasion that summer, B.H., who was then thirteen years old, went to appellant's house after R.M. was already there. When B.H. walked into the house, he saw R.M. on his knees on the couch, almost on top of appellant. Appellant told B.H. to come sit on the couch. He told B.H. that he and R.M. " play with each other," and he had pornographic books in his bedroom and pornographic movies in the basement. Appellant then paused the movie that he
and R.M. were watching, locked the front door to the house, and took the boys into his bedroom. B.H. sat on the bed, and appellant took five or six pornographic magazines from his drawer. Appellant then laid down on the bed and told B.H. to " look." When B.H. turned to look, appellant was masturbating on the bed. Appellant then grabbed B.H. at his waist and told R.M. to help him take B.H.'s belt off. B.H. said no. A few minutes later, they returned to the living room, and appellant continued to talk about what he and R.M. did together, telling B.H. that he had pornographic movies in the basement. M.M. then knocked on the door. B.H. never went into the basement, and he did not [220 Md.App. 317] see the movies. Appellant then took B.H., R.M., and M.M. to Wal-Mart and bought two Transformers.
B.H. testified that this incident occurred before their trip to South Carolina. B.H. never reported the incident because appellant told him that, if he told anyone, " he was going to have trouble," and B.H. was scared that appellant would kill his aunt and uncle.
Detective Torrie Cooke, a member of the Montgomery County Police Department's Youth and Family Crimes Division, began an investigation into the allegations of abuse in August 2011. He executed a search warrant for appellant's house and seized pornographic magazines from a drawer in appellant's bedroom, as well as pornographic videos in the basement.
Appellant denied having any sexual contact with R.M. He testified that he found R.M. and B.H. in his ...