Circuit Court for Montgomery County Case No. 129825
Graeff, Nazarian, Fader, JJ.
a bench trial, Todd Michael Scriber, appellant, was convicted
of two counts of sexual abuse of a minor in violation of Md.
Code (2012 Repl. Vol) § 3-602(b)(1) of the Criminal Law
Article ("CR"). The circuit court imposed
concurrent sentences of 25 years' imprisonment, all but
18 months suspended, followed by five years of supervised
appeal, appellant presents one question for this Court's
review, which we have rephrased slightly, as follows:
Was the evidence sufficient to support appellant's
convictions of sexual abuse of a minor?
For the reasons set forth below, we shall affirm the
judgments of the circuit court.
AND PROCEDURAL BACKGROUND
October 2, 2015, appellant, a science teacher at a Montgomery
County high school, administered a makeup exam to N.S., one
of his students. As part of the accommodations for her
learning disability, N.S. took a written examination and then
had the questions administered orally.
completing the written examination, N.S. went to the front of
the classroom, where appellant was seated in a roller chair,
to go over the exam orally. N.S. was wearing a skirt, and she
stood approximately 18 inches from appellant.
appellant was facing his computer and using his iPhone as he
conducted the examination orally. Toward the end of the exam,
however, appellant turned to face N.S. and "leaned
forward like on his knees, " with his phone in his hand.
The phone was facing downward with the screen toward the
floor and the camera facing upward.
testified that, after leaning forward, appellant put the
phone "almost underneath [N.S.'] skirt" and
"started clicking the volume button[, ] which takes
pictures" when the phone is positioned in the manner
described. N.S. believed appellant was taking pictures by
"clicking the volume button" because she had taken
pictures in that same manner herself.
point, N.S. stepped back and crossed her legs while she
finished the oral review of the examination. After completing
the examination, N.S. left appellant's classroom and met
two of her friends, who were waiting outside of the
classroom. N.S. told these two friends about the pictures
appellant was taking during the examination. N.S. also told
her father and mother.
parents called the school and scheduled a meeting with the
principal for the following Monday. N.S. also filed a complaint
with Child Protective Services ("CPS") for
Montgomery County, which was forwarded to the Montgomery
County Police Department.
October 5, 2015, Michelle Sears, a CPS worker, and Detective
Wendy Giovacchini, a detective with the sexual assault unit
of the Montgomery County Police Department, interviewed N.S.
The next day, Detective Giovacchini, along with Corporal
Julia Gilroy, went to the high school to speak with
Giovacchini advised appellant that N.S. thought appellant had
taken pictures on his phone while she was taking the
examination. Detective Giovacchini asked to look at
appellant's phone. Appellant stated that the phone was in
his vehicle. After going to the vehicle and opening his
trunk, however, appellant said that his phone actually was at
Giovacchini, Corporal Gilroy, and appellant returned to
appellant's classroom, where appellant retrieved his
phone from the top of his desk and began "looking
through items on his phone." Detective Giovacchini asked
to see to the phone, which was "opened to the
photos." As Detective Giovacchini looked, she noticed
that there were pictures of adolescent females in the
classroom. Specifically, she observed "pictures of butts
[in] what appeared to be the classroom setting."
Detective Giovacchini did not see a picture of N.S. or the
clothes she described wearing on the date of the incident.
appellant saw the pictures that Detective Giovacchini found,
"he grabbed . . . for the phone." Detective
Giovacchini told appellant that she was keeping the phone.
police subsequently obtained a search warrant for
appellant's phone. On October 14, 2015, Detective Robert
Onorio, an investigator in the child exploitation unit and
electronic crimes unit of the Montgomery County Police
Department, examined the phone. He placed the phone in a
Faraday Box to cut off network connection. Detective Onorio
then extracted the data stored on the phone and loaded it
into physical analyzer software to review the artifacts
extracted from the phone. He found photos, as well as "a
number of thumbnail images of what appeared to be females in
a classroom setting where the focus of the images were the,
the buttocks of the young females." He explained that,
when a phone captures a picture, the image is saved in a file
path, but a thumbnail of that image is "not
automatically created." A thumbnail is not created until
the user "touch[es] the photograph [in the camera roll]
and [makes] it appear  full screen. That's when the
thumbnail would be captured. Otherwise, you would have a
thumbnail for every single photograph." In other words,
to capture a thumbnail, user manipulation of the image is
required. "[I]f a user has manually deleted the
photographs . . . but not actually looked at the photograph,
it would not have created the thumbnail image. It would just
simply not be there."
thumbnail is not visible on a phone like a photograph would
be visible. If a picture is taken and a thumbnail ultimately
created, however, the thumbnail will remain on the phone even
after the picture is deleted (though not visible to a user).
Although it is possible to delete a thumbnail from a phone,
Detective Onorio testified that to do so, it would generally
require a factory reset or a special program, but that
"[i]t's just not something that [the phone] is
designed to readily do."
was indicted on four counts of sexual abuse of a minor. Count
I of the indictment pertained to the conduct relating to N.S.
II involved images from appellant's phone, shown in
State's Exhibit No. 14, which the parties stipulated were
of the minor-victim, R.K., who was appellant's student
during the fall of 2015. State's Exhibit No. 14 depicted
images of R.K. standing in a classroom with her arms
outstretched and cleavage exposed. State's Exhibit No. 12
depicted 24 thumbnails of R.K.
III involved images from appellant's phone, shown in
State's Exhibit Nos. 8 and 15, which the parties
stipulated were of the minor-victim, M.S., who was
appellant's student during the fall of 2015. These
exhibits depicted images of M.S.' buttocks, taken in the
classroom setting as M.S. was bending over.
IV involved images from appellant's phone, shown in the
State's Exhibit No. 13, which the parties stipulated were
of the minor-victim, G.E., who was appellant's student
during the fall of 2015. State's Exhibit No. 13 depicted
images, taken from behind, of G.E. standing in a classroom.
images of M.S., R.K., and G.E. were admitted into evidence.
Additionally, the court admitted photos of unknown females,
which the court found relevant to appellant's intent. The
court described one photo as one where the "whole
photo" was depicting "a girl's buttocks."
It stated that there was "no legitimate student activity
going on, " but rather, it was "just a girl bending
all the evidence was presented, the court issued its ruling.
The court made the following findings of fact:
So, I find from the evidence that [N.S.] was present in the
[appellant's] classroom on October the 2nd, last year, to
take a makeup test. She approached, at some point, the
[appellant's] desk so she could review her answers with
him as he sat in a swivel chair. She was dressed at the time
in a knee-length skirt, and she stood as the [appellant] sat
at his desk.
Towards the end of this oral review of her answers, I find
that [appellant] turned to face [N.S.] and moved his chair
forward towards her with his elbows resting on what would be
his thighs, as demonstrated by [N.S.] when she showed us, and
a cellphone in his left hand. I find that she had observed
him doing something on the phone in the moments before. And,
at that time, he was looking down at the phone.
As [appellant] leaned forward, and this is something that I
don't think was, I heard a lot about after it was said,
but she testified, and I find as a fact, that the phone was
facing down. In other words, the screen would not be visible
to the [appellant] who was facing the floor. At that time, I
find that she saw him hit the volume button, and she heard
At this point, the phone was almost underneath her skirt, and
she saw movement in the phone as his fingers worked the
volume button. She believed, and I agree with her, that she
had been photographed by the [appellant]. And, so she crossed
her legs and leaned back up against a nearby desk ostensibly
in an effort to avoid being photographed anymore.
Soon after that, she concluded her business. She left. She
informed her friends and her father of what had occurred.
* * *
The parties have agreed that at least 30 images were taken of
the alleged victims in Counts 2, 3, and 4. No images of
[N.S.] were recovered. It's unclear as to when the photos
in 2, 3, and 4 were taken other than the stipulation that it
was during that first I guess you call semester of the year
for his particular class.
circuit court then noted that, although "[t]he case law
does tell us that this particular offense is not a specific
intent crime, " "there's got to be some reason
here for these photos to have been taken in order for [the
court] to consider whether the [appellant] is guilty of child
sexual abuse." In that respect, the circuit court ...