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Allen v. State

Court of Appeals of Maryland

July 12, 2016


          Argued: 5 /4 /16

         Circuit Court of Wicomico County, Maryland Criminal Case No. 22-K-13-000586

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Battaglia, Lynne A. (Retired, Specially Assigned), JJ.


          Hotten, J.

         This case concerns a condition of probation that impinges upon a defendant's fundamental due process right to parent his child. Troy Robert Allen ("Petitioner") was convicted after a jury trial in the Circuit Court for Wicomico County ("circuit court") of sexual abuse of a minor household member, § 3-602(b)(2) of the Md. Code (2002, Repl. Vol. 2012), Criminal Law Article ("Crim. Law"), two counts of third degree sex offense, Crim. Law § 3-307, three counts of second degree assault, Crim. Law § 3-203, and one count of fourth degree sex offense, Crim. Law § 3-308(b)(1). Pursuant to Petitioner's Motion for a New Trial, one of the convictions for third degree sex offense was stricken in favor of a finding of not guilty.

         Petitioner was sentenced to twenty-five years' imprisonment (all but five years suspended) for sexual abuse of a minor, and twenty-one years' imprisonment (all suspended) for the remaining offenses, to run consecutively. Petitioner was also required to serve five years of supervised probation upon his release, with the condition that he have no unsupervised contact with minors. Petitioner appealed to the Court of Special Appeals, arguing, inter alia, that the circuit court erroneously prohibited unsupervised contact with his minor son during the probationary period. The Court of Special Appeals, in an unreported opinion, Troy Robert Allen v. State of Maryland, No. 0617, September Term, 2014, (October 7, 2015), held that the condition of probation was "sufficiently related" to the "sexual assault of a child residing in [Petitioner's] household[, ]" and affirmed the judgments of the circuit court. This Court granted a Writ of Certiorari to determine whether the circuit court erred by imposing the no-unsupervised-contact with minors condition. For the reasons that follow, we shall affirm the judgments of the Court of Special Appeals.


         After dating for several months in 2012, Petitioner and his then-girlfriend ("Marisa") began sharing a home in Salisbury, Maryland. At the time Petitioner and Marisa moved in together, Marisa had shared custody of her ten-year-old daughter from a prior relationship ("B.").[1] In March 2013, Petitioner and Marisa had a son ("F."), who resided in the home along with B.

         The evidence at trial revealed several instances of B.'s sexual abuse at the hands of Petitioner while B. was a member of his household during 2012-2013:

         On one such occasion, B. and Petitioner were sitting on the couches in the living room of their home when B. noticed that Petitioner's penis was protruding from the waistband of his shorts.[2] After Petitioner noticed that B. had seen his penis, Petitioner wrote "[d]id you see it?" on a piece of paper, which he later crumpled up. On a later occasion, B. was again sitting on a couch in the living room with Petitioner seated next to her, when Petitioner exposed his penis and asked her "to touch it[.]" When. B. refused, Petitioner placed the tip of his penis on her left forearm. During both of these incidents, Marisa was not present in the living room, but was elsewhere in the home. B. did not inform Marisa at the time, because she was fearful that Petitioner would become angry.

         The evidence at trial also revealed that, on two occasions, Petitioner squeezed the nipple area of B.'s chest. During the first incident, Marisa, Petitioner and B. were grocery shopping, and Petitioner and B. were "horse playing[]" when Petitioner twisted B.'s nipple. B. informed Marisa that "[Petitioner] just pinched my boob[, ]"[3] and Marisa confronted Petitioner by telling him: "don't ever touch her there again." Petitioner responded that he was sorry, but shortly thereafter told B. that "he was going to put his thing in [her] thing." On the second occasion, B. and Petitioner were alone in the kitchen of the residence and Petitioner "turned [B.] and then twisted [her] boob." Marisa was located elsewhere in the home during this later incident, and B. did not inform her of the abuse at the time.

         On August 1, 2013, Marisa asked Petitioner to leave their shared home in Salisbury, and on August 4, 2013, B. spoke with police regarding the aforementioned abuse. On that same date, Marisa text messaged Petitioner concerning B.'s allegations, and Petitioner responded that "I will not go down like this, I won't have that label on me when I know it will go away." Petitioner further stated that "he would take his life and that he was leaving town and going to get a bus ticket."

         I. Sentencing

         In preparation for Petitioner's sentencing hearing, a psychologist employed with the Department of Health and Mental Hygiene ("DHMH") prepared a mental health assessment, and the Department of Parole and Probation prepared a pre-sentence investigation.[4]

         a. The mental health assessment

         Based on a two-and-a-half hour interview with Petitioner, along with the consideration of several documents, a licensed psychologist working with DHMH made several findings regarding Petitioner's account of the instant offense, Petitioner's background, and Petitioner's mental status. The psychologist also performed a structured risk assessment, and rendered conclusions and recommendations.

         Concerning Petitioner's account of the instant offense, the psychologist noted that Petitioner "was very guarded and superficial in his discussion and had to be redirected to describe the events." According to the assessment, Petitioner stated that the occasions B. had seen his penis were "inadvertent" and "not purposeful." Petitioner remarked that "when he sat on the couch he slouched so that his shorts or pants went low on his hips and that he put his hands in the waistband of his pants." Petitioner stated his belief that "everyone sits like that[, ]" and as a result, B. was able to view the tip of his penis. Petitioner reported that the incident at the grocery store was simply horseplay where he "was pinching" and "accidently got her chest." Petitioner reported that he was upset about the charges against him, and opined that "he does not believe that his crime is a sex offense."

         Regarding Petitioner's background, he reported to the psychologist that "his sexual fantasies and behavior have always been heterosexual[]" and "[h]e denied any sexual behavior or fantasies involving men." Petitioner reported that, after he graduated high school and moved to North Carolina, he began "'talking with girls' via text over the phone." According to Petitioner, these girls would send him pictures and he "got into a porn addiction[, ]" where he would use online dating sites to trade sexually explicit photos with "freakier girls." Petitioner informed the psychologist that he moved to Maryland in an attempt to stop this behavior, but began "engaging in the … phone exchanges[]" when "his relationship with his girlfriend [(Marisa)] worsened." The psychologist noted that, in an interview with police, Petitioner acknowledged using an internet chat room to exchange pictures with girls who were 15 and 16 years old. Petitioner stated "that his exhibitionist behavior and fantasies all involved texts and phone messages, and denied exhibitionism in person." According to the psychologist, Petitioner "normalized his behavior" and his "level of insight was poor."

         Concerning Petitioner's mental status, Petitioner was diagnosed with "[e]xhibitionist [d]isorder – pre-pubertal child victim" and "sexual abuse of a child – perpetrator":

Exhibitionist disorder is diagnosed when an individual obtains recurrent and intense sexual arousal from the exposure of genitals to an unsuspecting person and has acted on these urges with a non-consenting person. Through his behavior on the internet and by texting, [Petitioner] gained arousal and sexual satisfaction including ejaculation through sending pictures of himself to others. In the instant case he furthered this behavior by exposing himself to an unsuspecting and non-consenting person, the pre-pubertal victim.

         The risk assessment revealed that Petitioner exhibited a moderate risk of engaging in further acts of sexual violence. Using an actuarial assessment tool for quantifying the risk of sexual violence, the psychologist concluded that Petitioner was in the 78th percentile among adult male sexual offenders, with the 100th percentile being the most likely to reoffend. As a result, Petitioner's "risk of sexual re-offending, relative to other sex offenders, [was] estimated at being almost twice that of other sex offenders." The assessment noted that "[r]isk factors for re-offending in [Petitioner's] case include his young age, history of repetitive problematic sexual behavior, and his lack of awareness of the potential impact of his behavior on a very young victim." The assessment's conclusion remarked that "[Petitioner] has a history of engaging in sexual behavior with young adolescents[, ]" and "his lack of caution and inhibition in engaging in sexualized behavior in front of girls under 18 is problematic."

         b. The pre-sentence investigation

         The pre-sentence investigation revealed that, as of March 31, 2014, Petitioner also had pending charges in Worcester County, Maryland for sexual abuse of a minor household member, sexual abuse of minor, and two counts of indecent exposure. The Worcester County case involved B. and another ten-year-old female. The pre-sentence investigation recommended that Petitioner be sentenced according to the Maryland sentencing guidelines, and, inter alia, "have no contact with the victim or her family, " and "have no unsupervised contact with minor females[.]"

         c. The sentencing hearing

         At Petitioner's sentencing hearing, the State of Maryland ("State") sought twenty-five years' incarceration (all but eight suspended) for the sexual abuse of a minor, consecutive suspended sentences on all remaining counts, and five years of supervised probation upon Petitioner's release. Among the conditions of probation requested by the State was that Petitioner have no contact with B., and "[n]o unsupervised contact with minors." Petitioner's counsel objected to the no-unsupervised-contact condition:

[PETITIONER'S COUNSEL]: … Now, one of the problems is the unsupervised contact with minors….
[H]e has his own son, [F.] Obviously, he needs to see him, should have contact with his son. And I think that the Court, any Court Order would need to be a little more fine ...

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