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Scriber v. State

Court of Special Appeals of Maryland

March 29, 2018

TODD MICHAEL SCRIBER
v.
STATE OF MARYLAND

          Circuit Court for Montgomery County Case No. 129825

          Graeff, Nazarian, Fader, JJ.

          OPINION

          GRAEFF, J.

         Following 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 probation.

         On 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         On October 2, 2015, appellant, a science teacher at a Montgomery County high school, administered a makeup exam to N.S., one of his students.[1] As part of the accommodations for her learning disability, N.S. took a written examination and then had the questions administered orally.

         After 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.

         Initially, 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.

         N.S. 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.[2]

         At that 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.

         N.S.' parents called the school and scheduled a meeting with the principal for the following Monday.[3] N.S. also filed a complaint with Child Protective Services ("CPS") for Montgomery County, which was forwarded to the Montgomery County Police Department.

          On 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 appellant.

         Detective 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 school.

         Detective 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.

         When appellant saw the pictures that Detective Giovacchini found, "he grabbed . . . for the phone." Detective Giovacchini told appellant that she was keeping the phone.

         The 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.[4] 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."

         A 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."

         Appellant was indicted on four counts of sexual abuse of a minor. Count I of the indictment pertained to the conduct relating to N.S.

         Count 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.

         Count 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.

         Count 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.

         Multiple 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 over."

         After 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 clicking.
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.

         The 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 ...


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