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Lindsey v. State

Court of Special Appeals of Maryland

January 2, 2018


         Circuit Court for Montgomery County Case No. 129487

          Leahy, Reed, Shaw Geter, JJ.


          Shaw Geter, J.

          Appellant, Marcus Jamal Lindsey, was convicted by a jury in the Circuit Court for Montgomery County of second-degree assault and two counts of human trafficking. The court sentenced appellant to twenty years in prison for one count of human trafficking, and to concurrent ten-year sentences on the remaining counts. Appellant presents the following questions for our review, the first of which we have rephrased:

1. Was the evidence sufficient to sustain appellant's conviction for human trafficking for placing or causing another to be placed in the hotel for prostitution?[1]
2. Did the circuit court abuse its discretion by instructing the jury, in response to a jury note, that one count of human trafficking related to alleged conduct "on or about March 3, 2016, " rather than "on March 3, 2016?"
3. Did the circuit court abuse its discretion in refusing to allow the defense to play recordings of jail telephone calls involving [appellant]?
4. Did the circuit court err in barring the defense from introducing evidence that the woman whom appellant allegedly forced into prostitution was engaging in prostitution while appellant was in jail?
5. Did the circuit court abuse its discretion by failing to clearly delineate the elements of human trafficking in the jury instructions?

         For the reasons set forth below, we shall affirm the judgments of the circuit court.


         The State alleged that appellant took S.S.[2] to a hotel room in Rockville, attempted to force her to have sex with someone, and struck her in the face. S.S. did not testify. The defense's theory of the case was that S.S. was appellant's girlfriend, and that she prostituted against his wishes. With respect to the second-degree assault charge, appellant admitted that he hit S.S. in the face during an argument in the hotel room, but claimed that he did so in self-defense.

         Solange Kpela, a housekeeper at the Radisson hotel in Rockville, testified that on March 3, 2016, she was cleaning the hallway of the second floor of the hotel when she heard a man and woman arguing and "struggling" inside room 201. Ms. Kpela explained:

It sound - normally when you come in the hotel, what caught my attention, that part is to have fun, but it was something like struggling. The male was saying, who are you going to talk to. The lady was screaming, get away from me, you lied to me.
* * *It was like, you are a hook - like this embarrasses me - you are a hook, you deserve it, who are you going to talk to. And it was back and forth. The lady was screaming, leave me alone, get away from me, stuff like that.

Ms. Kpela's first instinct was to get help for the woman. Before going to the front desk to report the incident, however, she decided to first record the argument by using her cell phone. The cell phone recording was played for the jury and admitted into evidence. Sounds of a struggle can be heard in the recording, and a female voice saying, "Marcus, stop it. No, no, no. No. No, " and "He didn't mean anything."

         Sandra Liuzzi, the catering sales manager at the Radisson, testified that she was at the front desk of the hotel on March 3, 2016, when a female guest approached her appearing "very frightened, " "crying, " and "extremely upset." Ms. Liuzzi tried to calm the guest down so that she could figure out what the problem was and get her help if she needed it. According to Ms. Liuzzi, the guest stated that "someone had hurt her, " "assaulted her in some way, " and that "someone was trying to make her have sex with someone." As Ms. Liuzzi was picking up the phone to call 911, the guest said, "oh my god…there he is." The man then began to approach them, but once he noticed that Ms. Liuzzi was making a phone call, he walked away. During this time, Ms. Kpela also approached Ms. Liuzzi at the front desk appearing very upset and insistent that she needed to speak with Ms. Liuzzi.

         Ms. Liuzzi called 911, and the 911 recording was played for the jury and admitted into evidence. In the call, Ms. Liuzzi stated to the dispatcher that a guest had been "beaten up" by "[appellant]." On cross-examination, Ms. Liuzzi acknowledged that she did not state to the 911 dispatcher that the guest had told her that someone had forced the guest to have sex, because, she explained, her goal was "just to get the police there as quickly as possible."

         Rockville City Police Officer Tibbs[3] responded to the Radisson. Upon arrival, he encountered S.S., whom he observed to have a bruise on her right eye. S.S. advised Officer Tibbs that she had no identification, no wallet, and no cell phone.

          Montgomery County Police Detective Molly Stone of the Vice and Intelligence Unit, the lead investigator assigned to the case, arrived at the Radisson and encountered S.S., whom she observed had a "swollen mark" under her right eye and redness on the left side of her face. The hotel folio records indicated that Kelly Nost had checked-in to the hotel and signed for the room by providing her address and phone number. The second page of the hotel folio record contained a photograph of a driver's license for Cicley Ann Lindsey-Asmani ("Ms. Asmani"), indicating that she was the individual who had rented the room. Ms. Asmani is appellant's mother.

         After speaking with S.S. for approximately one hour, Detective Stone accompanied her to room 201, where S.S. retrieved some clothing items and commented that appellant had taken other things from the room. Police photographs of room 201 were introduced into evidence showing boxes of condoms, condom wrappers, condoms in the nightstand drawer, a large piece of braided hair on the floor, a cell phone in a box, a sheet of paper with a list of phone numbers, and a Verizon phone bill addressed to Ms. Asmani.

         S.S. directed Detective Stone to the website, ", " where the detective located escort advertisements for S.S. and Ms. Nost by using the phone number that Ms. Nost had provided to the hotel at check-in. Print-outs of those ads were introduced into evidence. On cross-examination, Detective Stone testified that the escort ads for S.S. and Ms. Nost were associated with the e-mail addresses, "braman5, or something along those lines, " and ""

         On April 1, 2016, appellant was arrested at an extended stay hotel in Germantown, where he had been staying with S.S. Montgomery County Police Detective Nicholas Jerman of the Vice and Intelligence Unit interviewed S.S. at the hotel. Detective Jerman testified that S.S. informed him that she had posted her own ads on using the e-mails, "bramanfifthfloor" and "" According to the detective, when he asked S.S. if appellant had told her to post the ads, she replied, "He never forces me to do anything. He don't even want me to do this, so I mean I can take the blame." Detective Jerman further testified that it is common for prostitutes to take the blame for their pimps.

         S.S.'s mother testified that she and her husband adopted S.S. when she was three-years-old, and that S.S. had not lived with them since she was sixteen-years-old. She testified that she had previously assisted with her daughter's placement in a group home, but that she had not spoken to her daughter in over three months, and that she did not know her daughter's current whereabouts.

         Ms. Asmani and Nicole Lindsey, appellant's sister, each testified that S.S. and appellant had been dating, and that S.S. was the cousin of appellant's children's mother. Ms. Asmani testified that she rented the room at the Radisson so that appellant could be close to the hospital where his son was being delivered because appellant was homeless and he needed a place to so that "he can get cleaned up, go visit his son." Ms. Asmani did not visit the hotel room that she rented for appellant.

         Following appellant's arrest in this case, Ms. Asmani continued to communicate with S.S., and allowed S.S. to live with her for approximately one week. The defense introduced copies of text messages between Ms. Asmani and S.S. in which Ms. Asmani asked S.S. why she lied to police by telling them that appellant had forced her to prostitute. S.S. responded by text message, saying that she had acted "out of the heat" of a "moment of anger" because she was mad that Ms. Nost was there and that she was "influencing him too much."

         Appellant testified that he brought S.S. to the Radisson hotel with him to be near the hospital where his son was being delivered. Appellant stated that S.S. was his girlfriend, that she was a prostitute, and that he had brought her to the hotel for "his reason." He stated that Ms. Nost was also a prostitute, and that S.S. had invited her to the hotel room, and that although he knew that both women had engaged in prostitution in the hotel room, he was not present in the room when they did so. According to appellant, the physical altercation between him and S.S. at the Radisson on March 3, 2016, was precipitated by a sexual encounter on the previous day involving himself, S.S., and Ms. Nost, during which S.S. was unhappy that he was not showing her enough attention. Appellant admitted that on March 3, 2016, he hit S.S. in the face after she had "yanked" his hair. Appellant acknowledged that he grabbed S.S. to keep her from leaving the room, but stated that it was not because he was forcing her to engage in prostitution. He explained that he was trying to keep her from calling the police because he had outstanding warrants for a probation violation, and he feared that he would be arrested if the police were called.

         On cross-examination, appellant acknowledged that in the weeks leading up to March 3, 2016, he and S.S. stayed at ten different hotels in the Washington, D.C. and Baltimore area, for one or two nights on average. Appellant explained that he did this because he was homeless. Appellant had received a tax refund that he used to stay in these hotels, and he booked the hotels online to take advantage of discounted prices. In response to the prosecutor's question as to whether S.S.'s escort ad was posted on during the two-week time period prior to March 3, 2016, appellant responded that it was not posted the "entire time, " explaining:

[W]hen my tax money had run out, that's when she said we start sleeping in stairwells, and stuff like that. So, she was like she's not going to live like that, and she, I guess she just started [prostituting].

         Appellant was aware that S.S. was posted as an escort on on March 3, 2016. Appellant admitted that "" is his e-mail account, but stated that S.S. had access to his e-mail account because their electronic devices were linked to the same iCloud account.

         Appellant was aware that S.S. was engaged in prostitution in the Radisson hotel room. He testified that he did not make S.S. prostitute, he did not receive any money or financial benefit from her prostitution, and he did not place her in the Radisson for prostitution. He stated that he "didn't like her doing it, " and "didn't want her doing it at all" because he "didn't want to be involved with it."

         We shall provide additional facts as necessitated by our discussion of the issues presented.



         Appellant contends that the evidence was insufficient to sustain his conviction for human trafficking by "knowingly harboring, taking, placing or causing another to be placed in any place for prostitution" under Maryland Code, Section 11-303(a)(1)(ii) of the Criminal Law Article ("C.L."). Specifically, appellant claims that the evidence failed to show that he "harbored" S.S. in the hotel for the purpose of prostitution. According to appellant, the evidence "overwhelmingly established" that S.S. was at the hotel "voluntarily, and for purposes unrelated to prostitution." The State responds that the evidence was sufficient to show that appellant brought S.S. to the hotel room for the purpose of prostitution. Appellant does not challenge the sufficiency of the evidence as to his convictions for human trafficking by force under CL § 11-303(b)(2) and for second-degree assault.

         We review a challenge to the sufficiency of the evidence to determine "'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Grimm v. State, 447 Md. 482, 494-95 (2016) (quoting Cox v. State, 421 Md. 630, 656-57 (2011)); accord Jackson v. Virginia, 443 U.S. 307, 319 (1979). In applying that test, "[w]e defer to the fact finder's opportunity to assess the credibility of witnesses, weigh the evidence, and resolve conflicts in the evidence." Neal v. State, 191 Md.App. 297, 314 (2010) (citation and internal quotation marks omitted). And, importantly, we defer to any reasonable inferences a jury could have drawn in reaching its verdict, and determine whether there is sufficient evidence to support those inferences. State v. Mayers, 417 Md. 449, 466 (2010).

         This Court does not "inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt, but merely ascertains whether there is any relevant evidence, properly before the jury, legally sufficient to sustain a conviction." Morgan v. State, 134 Md.App. 113, 126 (2000) (quoting State v. Devers, 260 Md. 360, 371 (1971)). Importantly, "it is not the function or duty of the appellate court to undertake a review of the record that would amount to, in essence, a retrial of the case." Mayers, 417 Md. at 466 (quoting State v. Albrecht, 336 Md. 475, 478 (1994)).

         Appellant challenges his conviction for human trafficking under CL § 11-303(a)(1)(ii) which states that "[a] person may not knowingly…place, cause to be placed, or harbor another in any place for prostitution[.]" "Prostitution" is defined as "the performance of a sexual act, sexual contact, or vaginal intercourse for hire." C.L. § 11-301(c).

         Appellant acknowledged that he "brought [S.S.]" to the hotel "for his reason, " and that S.S. was engaged in prostitution in the hotel room. Ms. Kpela testified that she heard a woman screaming in room 201 "leave me alone, get away from me, " and the response, "you deserve it, who are you going to talk to?" Immediately thereafter, S.S. was observed to be visibly shaken as she sought help from the staff in the hotel lobby. Photographs of the hotel room showed boxes of condoms, condoms in the nightstand, condom wrappers on the floor, and a list of phone numbers.

         The documentary evidence showed that although Ms. Asmani rented the hotel room, it was Ms. Nost who checked-in to the hotel for appellant. Detective Stone's investigation revealed that the phone number that Ms. Nost provided at check-in was the same phone number associated with S.S.'s account advertising "escort" or prostitution services. Moreover, S.S.'s account was connected to the email address, ", " which e-mail appellant acknowledged to be his. Appellant stated that he was aware that S.S. had posted an escort ad on on March 3, 2016.

         Appellant's explanation for his presence at the Radisson, and his denial of any involvement in S.S.'s prostitution during his stay there, was for the jury to consider and weigh against the other evidence in the case. As we have stated before, "we must give great deference to the trier of facts' opportunity to assess the credibility of witnesses, weigh the evidence, and resolve conflicts in the evidence[.]" Pinkney v. State, 151 Md.App. 311, 329 (2003); see also Kamara v. State, 184 Md.App. 59, 79 (2009) (quoting Draco v. State, 46 Md.App. 622, 628 (1980) ("The credibility of the witnesses at trial is of course for the trier of fact[, and] the trier of fact is under no obligation to believe even uncontradicted explanations or denials of an accused")); see also Turner v. State, 192 Md.App. 45, 81 (2010) (citation omitted) (observing that the jury is "free to discount or disregard totally [a defendant's] account of the incident").

         Based upon the verdicts in this case, it is apparent that the jury did not credit appellant's testimony. We conclude that the evidence was sufficient to sustain appellant's conviction for human trafficking by placing or harboring S.S. in the hotel for prostitution.


During its deliberations, the jury sent the trial judge a note asking:
With regards to the Human Trafficking - Force charge, is this charge limited to - on the day of the incident? Or, is it over the time of [appellant] and [S.S.]'s relation?

         In response to the jury note, the following discussion ensued among the parties and the court:

COURT: [T]he answer is that [appellant] is charged with, all three charges are alleged to have occurred on March 3rd, 2016. So I'm inclined to respond to this question by advising the jury that [appellant] is alleged ...

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