Appeal from the Circuit Court for Montgomery County. Cheryl A. McCally, Judge.
Submitted by: Juan P. Reyes (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD for Appellant.
Submitted by: Carrie J. Williams (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD for Appellee.
Alpert, Paul E. (Retired, Specially Assigned), JJ.
[220 Md.App. 689] Alpert, J.
Andres Cortez, appellant, was convicted by a jury sitting in the Circuit Court for Montgomery County of two counts of third-degree sexual offense and one count each of conspiracy [220 Md.App. 690] to commit a sexual offense in the third-degree, second-degree assault, and participation in a criminal gang. Appellant raises one question on appeal: Did the trial court err in denying appellant's motion to sever his participation in a criminal gang charge from his four other charges? For the reasons that follow, we shall affirm the judgments.
The State's theory of prosecution was that at a party on October 4, 2012, appellant videotaped a sexual assault of the victim by members of the " Little R" gang. The victim, one of the men at the party, and several police officers testified for the State. The theory of defense was lack of criminal agency. Appellant's mother testified for the defense. Viewing the evidence elicited in the light most favorable to the State, the prevailing party, the following was established at trial.
Over the summer and fall of 2012, Christopher Stultz worked with appellant in the kitchen of a restaurant in Montgomery County. In early November, appellant told Stultz that he wanted to show him something " funny" and then showed him a video on his cell phone. According to Stultz, the video showed three men having sexual intercourse with a woman who was " out of it." Appellant told Stultz that he had videotaped it at a party, and Stultz recognized appellant's voice on the video. Stultz told the owner of the restaurant about the video, who in turn called the police.
A few days later, on November 9, the police executed a search warrant for appellant's home where he lived with his mother. The police recovered a cell phone on the floor of [220 Md.App. 691] appellant's bedroom. From the cell phone, the police located a video showing a sexual assault on a woman by several men. The videographer, who is making comments about the assault, is seen touching the buttocks and breasts of the victim while the other men are displaying hand signs, tattoos, and shouting " La
Erre." The videographer can be heard saying:
That is Moreno trying to get some pussy, but is not. Laeda, you know what I'm saying, you know what I'm saying. That's [unintelligible] but -- Mohammed, calm the fuck down. You know what I'm saying. Smile for the camera, baby. Let me see some nipples. Sure, let me see some nipple. Let me see some boobs. Let me see some boobs. Let me see some [unintelligible]. That's ...