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Barber v. State

Court of Special Appeals of Maryland

February 2, 2017


          Eyler, Deborah S., Reed, Salmon, James P. (Senior Judge, Specially Assigned), JJ.


          Salmon, J.

          In 2010, Rahymeen Barber, appellant, was found guilty by a jury in the Circuit Court for Wicomico County of sexual abuse of a minor, second-degree rape, second-degree sexual offense, three counts of third-degree sexual offense, and three counts of second-degree assault. The court sentenced appellant to a term of 50 years imprisonment. Upon direct appeal of his convictions, a panel of this Court affirmed the judgment of the trial court in an unreported opinion. See Rahymeen J. Barber v. State of Maryland, No. 2238, Sept. Term, 2010 (filed June 13, 2012).

         Appellant thereafter filed a petition for post-conviction relief alleging, inter alia, that his trial counsel seriously prejudiced him by failing to investigate the validity of the opinions of the State's expert witness and failing to present expert testimony to counter the State's expert witness who opined that the victim's "normal" genital examination was not inconsistent with the victim having been raped. After the circuit court denied his petition, [1]appellant sought leave to appeal, which we granted.

         For the reasons that follow, we affirm the judgment of the post-conviction court.

          I. BACKGROUND

         Set forth below is an excerpt from an unreported opinion by the panel of this Court that considered appellant's direct appeal. This excerpt provides a useful recap of some of the important evidence introduced at appellant's jury trial:[2]

This case concerns the sexual abuse of a minor, G.S. [born June 3, 1998], that occurred between 2003 and 2009, when G.S. ranged in age from five to nine years old. At the time of trial, G.S. was twelve-years-old and lived on Jackson Street in Salisbury, Maryland. She testified that she knew appellant, her former stepfather, as "Poppy."
Appellant lived with G.S. for several years in different locations in the Salisbury area. The parties stipulated as follows: from June 10, 2003, until July 10, 2004, the family lived on Light Street; from July 11, 2004, to January 31, 2007, the family lived on Mitchell Street; and, from February 1, 2007, to April 30, 2009, the family lived on Tilghman Street.
G.S. . . . testified to details of various sexual assaults inflicted upon her by appellant. On one occasion at the Light Street address, when G.S. was five-years-old, appellant called her into the living room and had her remove her pants and underwear. Appellant, who was lying on the couch and attired only in a shirt and boxer shorts, placed G.S. on top of him and started moving her around. G.S. testified that she felt appellant's private part on her vaginal area and testified that "[w]hen he was putting it in me, it would hurt. It was hurting."
G.S. . . . recounted another incident, this time when appellant was living with the family on Mitchell Street. She testified that appellant asked her to lie down with him in bed, and then "he took my underwears [sic] off and everything and put his private part in my private part and did the same thing over again." She clarified that appellant's private part was his penis and her private part was her vagina. G.S. also testified that she felt something wet and noticed that it was white. G.S.'s mother worked late at night and was not at home at the time.
After the family moved to Tilghman Street, another incident occurred when appellant picked G.S. up while they were in the kitchen and "was scooting me down by his private." Both were wearing clothes at the time, but G.S. testified that she "felt his private, like kind of like scoot - like sticking up."
Dr. Jennifer Wehberg, accepted as an expert in pediatric medicine with an emphasis on child sexual abuse, examined G.S. on July 2, 2009. At that examination, G.S. only described the initial incident that occurred on Light Street. G.S. had a normal physical exam, including her vaginal and rectal exam. Because the vaginal area may heal rapidly, Dr. Wehberg testified that "a normal physical exam can be consistent with her disclosure."
Heather Sullivan, a social worker assigned to the Wicomico County Child Advocacy Center, testified that she first interviewed G.S. on May 19, 2009. G.S. described only the first incident of alleged sexual abuse that occurred when the family lived on Light Street. G.S. was re-interviewed on July 10 2009, and gave more details about this same, singular incident.
Sullivan then testified that she interviewed G.S. a third time on January 28, 2010. At this time, G.S. informed Sullivan that there had been more than just the one incident on Light Street. G.S. described the incident on Mitchell Street when appellant had G.S. lie on top of him. G.S. also indicated that this incident included appellant instructing her to perform oral sex on him. G.S. also described another incident at the Mitchell Street address, and this one involved penetration and ejaculation.
G.S. further informed Sullivan about a fourth incident at the Tilghman Street address when appellant had her lie on top of him on the couch and "again moved her up and down, privates touching privates, genitals touching genitals." A fifth incident also occurred at Tilghman Street, when appellant pulled G.S. towards him and their genitals touched through their clothing.
Tahesha Barber, G.S.'s mother, was married to appellant from 2004 to August 2010. G.S. first informed her mother about one incident of sexual abuse in May 2009, and Barber reported it to the Child Advocacy Center. Agreeing that G.S. disclosed information to her on two occasions, Barber testified that she was confused and "I didn't want to believe it the first time she told me, you know." After this initial interview with the Child Advocacy Center, Barber and her other children still had contact with appellant. G.S. would be present on some occasions when appellant visited Barber and the other children. Barber also testified that G.S. was interviewed again at the Child Advocacy Center in January 2010, after making a second disclosure.
Appellant testified on his own behalf and denied that any of the incidents occurred. Appellant denied having intercourse, oral sex or any sexual relations with G.S. On cross-examination, appellant agreed he was the father-figure in the household, that he disciplined the children, and that the children loved him.

Rahymeen J. Barber v. State of Maryland, No. 2238, Sept. Term, 2010, slip op. at 1-12.

         Concerning what G.S. said in regard to the force used when the second-degree rape occurred, the following exchange between appellant's trial counsel and G.S. is relevant:

Q: So when you say, my private part, you mean your vagina, is that right?
A: Yes.
Q: You indicated in response when telling that story that Mr. Barber put his penis in your vagina on that occasion, right?
A: Yes.
Q: You didn't tell that to Miss Heather [Sullivan] did you?
A: I told her that he put his private in my private.
Q: On both of those occasions, did you tell Miss Heather that Rahymeen put his penis in your vagina?
A: Yes.
Q: You didn't tell her anything that happened. On the two occurrences on Mitchell Street, you indicated that Mr. Barber put his penis in your privates, correct?
A: Yes.

         In recounting G.S.'s disclosures, to her, Dr. Wehberg testified that G.S. "stated that her stepdad put his thing into her, " she also responded to the question "G.S. disclosed penetration to you, is that right?"

A: Yes, she did.
Similarly, Heather Sullivan testified:
A: She [G.S.] again reported that it occurred in Mr. Barber's bedroom. Again, the bottom part of her clothing were removed. He again laid her on top of him, and his penis was hard. At this point in time, she described that his penis did go inside of her....
She described his penis again as hard as it went inside of her, and that it was nasty.
Q: Did she indicate the force with which the defendant moved?
A. I mean, she described it going inside of her and using that force to make that occur, and that it was not comfortable.


         Additional Trial Testimony of Jennifer Wehberg, M.D.

         Jennifer Wehberg, M.D., a board certified pediatrician and a CHAMP (Child Abuse Medical Provider) physician, was called as an expert witness for the State during appellant's 2010 jury trial. She examined G.S. more than two years after the last incident of alleged rape. Dr. Wehberg testified that she conducted a physical examination of G.S.'s vagina and rectum and that the results were "normal." She explained that a "normal finding means that she [G.S.] did not have any lacerations, cuts, redness, discharge, scarring, that there was no evidence of acute trauma, which means immediate trauma to the vaginal rectal area, and there was no evidence of scarring."

         Dr. Wehberg then opined that the "normal" finding was not inconsistent with G.S.'s disclosure that appellant had penetrated her vagina with his penis. She explained that "[t]he vaginal area is very vascular and very elastic and can heal very rapidly. Often within a few days, if you have genital trauma, it can be healed to the point where you can't recognize it as trauma."

         On cross-examination of Dr. Wehberg by appellant's trial counsel, the following exchange occurred:

Q: You examined as part of her genital examination, the presence or absence of a hymen, correct?
A: Yes.
Q: And you describe her hymen as crescentic?
A: Crescentic.
Q: Crescentic. Can you tell me what that means?
A: A hymen is a thin membrane of tissue that covers the vaginal opening. When you're very young, your hymen is what we call, annular. It's circular in shape covering the vaginal opening. As you get more into young childhood, it becomes a crescent which is a half-moon shape. It goes over the hymen, and you can see a crescent of a thin membrane.
Q: Okay.
A: That hymen as you enter puberty again turns into an an[]ular hymen which is round.
Q: The genital exam was perfectly normal, correct?
A: Yes, it was.
Q: There was, according to the report, no scarring, no damage, is that a fair statement?
A: Yes, it is.
Q: Your opinion or your diagnostic impression is that it is a normal physical exam, cannot diagnose or exclude abuse?
A: Right.
Q: Is that another way of saying, I don't know, maybe, maybe not?
A: That's a way of saying, I can't tell by her physical exam whether there has been sexual abuse.
Q: Can't confirm?
A: Right.
Q: Can't -
A: Can't confirm it, can't -
Q: Exclude it?
A: - deny it, yes.
On re-direct examination of Dr. Wehberg the following colloquy occurred:
Q: Are you . . . familiar with the research regarding medical findings in the victims of substantiated child sexual abuse?
A: Yes, I am.
Q: What does the research say regarding a normal genital exam?
A: A normal genital exam can be consistent with penetrating sexual abuse.
Q: Is there a percentage of cases in which there are - sex abuse has been confirmed but it remains a normal genital exam?
A: It has been shown that you can have a normal vaginal exam with penetrating sexual abuse. I do not know the percentage off my head without the cited article in front of me.



         The only crime of which appellant was convicted that required proof of penetration was second-degree rape. The flagship allegation made in appellant's petition for post-conviction relief dealt with two criticisms: (1) that defense never consulted with an OBGYN or child sexual abuse specialist; and (2) no defense expert was called to refute the opinion of Dr. Wehberg that a normal genital exam can be consistent with penetrating sexual abuse.

Kackley v. State 63 Md.App. 532
Penetration is a necessary element of the crime of second degree rape, Md. Ann. Code art. 27, § 463(a)(3); Smith v. State, 224 Md. 509, 168 A.2d 356 (1961); Craig v. State, 214 Md. 546, 136 A.2d 243 (1957); and "penetration, however slight, will sustain a conviction . . . but the proof thereof must sustain a res in re; that is, an actual entrance of the sexual organ of the male within the labia (majora) of the pudendum (the external folds of the vulva) of the female organ, and nothing less will suffice." Craig v. State, supra, citing 1 Wharton, Criminal Law (12th ed.), § 697.

         A brief description of the female genital area, referred to in Craig, is in order.

The mons pubis is the fat filled cushion over the anterior surface of the hair triangle. The labia majora consists of two rounded folds of adipose tissue extending downward and backward from the mons pubis. Within the labia majora are two flat, reddish folds of tissue that encase the clitoris; this tissue is clinically known as the labia minora.
The pudenda, or the external organs of generation, commonly designated as the vulva, includes all structures visible externally from the pubis to the perineum (the area bounded by the mons in front, the buttocks behind and the thighs laterally). Williams Obstetrics, 16th Ed., Pritchard-McDonald (1980).
Thus, penetration into either the labia minora or the vagina is not required; invasion of the labia majora, however slight, is sufficient to establish penetration.

Id. at 536-37.

         The relevant genital features of a girl, before puberty, are shown on Exhibit A (attached). To prove penetration, it is not necessary to prove that the hymen was ruptured. Craig, 214 Md. at 549.

         Testimony of Dr. Theodore Hariton

         During the post-conviction petition hearing, appellant called Dr. Theodore Hariton, a board-certified OBGYN from Tucson, Arizona.[3] He testified that he had reviewed Dr. Wehberg's trial testimony, Heather Sullivan's deposition and trial testimony and G.S.'s trial testimony. On direct-examination he testified, in pertinent part, as follows:

Q: And after you reviewed it did you arrive at any conclusions regarding whether the medical evidence was consistent with penetration?
A: I did.
Q: And what were those conclusions?
A: With reasonable medical certainty there's no medical evidence that penal [sic] vaginal penetration occurred at that time.
Q: Okay. So would it be unusual for a six-year-old[4] or a very young girl to have no finding after an episode of nonconsensual penal [sic] vaginal penetration?
A: Yes, it would.
Q: And what would you expect the history and physical findings to be that would be consistent with vaginal penetration?
A: Well, two things. First of all, the history, you should have pain and bleeding. If you go inside a hymen and tear a hymen in a little girl it will bleed and cause pain. The second thing is it will heal, all of them heal very nicely but it will heal with some physical change in shape that will tell you that something happened in this period of time.
Q: And are both these findings important?
A: Yes.
Q: And why so?
A: Well, the history of bleeding, pain and bleeding is one of the most consistent things in all the literature.
Q: Okay.
A: When you go through the findings you have the history of pain and bleeding.
Q: And were these present in this case?
A: No, there was no evidence - I'm sorry, there was nothing in this ...

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