RAHYMEEN J. BARBER
STATE OF MARYLAND
Deborah S., Reed, Salmon, James P. (Senior Judge, Specially
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).
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, appellant sought leave to appeal, which we
reasons that follow, we affirm the judgment of the
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
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
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
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
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.
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
Q: You indicated in response when telling that story that Mr.
Barber put his penis in your vagina on that occasion, right?
Q: You didn't tell that to Miss Heather [Sullivan] did
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?
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?
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
Trial Testimony of Jennifer Wehberg, M.D.
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."
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."
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?
Q: And you describe her hymen as 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.
A: That hymen as you enter puberty again turns into an
anular 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?
Q: Is that another way of saying, I don't know, maybe,
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?
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
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
A: A normal genital exam can be consistent with penetrating
Q: Is there a percentage of cases in which there are - sex
abuse has been confirmed but it remains a normal genital
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.
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.
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.,
Thus, penetration into either the labia minora or
the vagina is not required; invasion of the labia
majora, however slight, is sufficient to establish
Id. at 536-37.
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.
of Dr. Theodore Hariton
the post-conviction petition hearing, appellant called Dr.
Theodore Hariton, a board-certified OBGYN from Tucson,
Arizona. 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
Q: Okay. So would it be unusual for a
six-year-old or a very young girl to have no finding
after an episode of nonconsensual penal [sic] vaginal
A: Yes, it would.
Q: And what would you expect the history and physical
findings to be that would be consistent with vaginal
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
Q: And are both these findings important?
Q: And why so?
A: Well, the history of bleeding, pain and bleeding is one of
the most consistent things in all the literature.
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 ...