JULIUS DEVINCENTZ, JR.
STATE OF MARYLAND
Argued: April 9, 2018
Circuit Court for Cecil County Case No.: 07-K-15-001678
Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.
"[T]he trial of any case is a search for truth. The
strength of each side of an issue rests upon the
believability of the evidence offered as proof."
State v. Cox, 298 Md. 173, 178 (1983). It is a
fundamental principle of Maryland law that, in a criminal
case tried before a jury, assessing a witness's
credibility is a matter solely for the jury. Bohnert v.
State, 312 Md. 266, 277 (1988). One method of attacking
a witness's credibility is impeachment. In this opinion,
we address two questions of Maryland evidentiary law
pertaining to impeaching witness credibility. First, we
consider whether a witness's statement that another
witness "would not tell the truth about certain things[,
]" was admissible as a personal opinion about that
witness's character for untruthfulness. Second, we
explore the admissibility of out-of-court threats as
nonhearsay evidence of bias.
AND LEGAL PROCEEDINGS
2008, Julius Devincentz, Jr. and Y.D. began a romantic
relationship. Y.D., her daughter K.C., and her son S., moved
into Devincentz's home in Elkton, Maryland from
Pennsylvania. Devincentz's children, Brianna, Joshua, and
Kenny also lived at the house. Devincentz and Y.D. lived
together with their children as a blended family until the
couple separated in November 2015.
April 2015, K.C. left the Devincentz home and went to the
Maryland Salem Children's Trust, a residential facility
for juveniles. Some months into her stay, in September 2015,
K.C. told her therapist that Devincentz had sexually abused
her when she was six or seven years old. The therapist
reported K.C.'s allegations.
State charged Devincentz with one count of continuing course
of conduct against a child, two counts of sexual abuse of a
minor, one count of second-degree sexual offense, one count
of third-degree sexual offense, one count of fourth-degree
sexual offense, and one count of second-degree assault. In
2016, Devincentz was tried in the Circuit Court for Cecil
was the State's primary witness. She testified that, on
multiple occasions, when she was about seven years old, and
nobody else was home, Devincentz
would watch porn on our desktop computer in the living room,
and he would ask me to come over and sit on his lap, and I
would be scared and sometimes I would say no, and he would
force me to sit on his lap, and he would touch me in my
testified that Devincentz placed his hand underneath her
clothes and underwear and touched the inside of her vagina
for approximately 10 or 15 minutes. Afterward, Devincentz
told her not to tell anyone. She also testified that
Devincentz watched pornography on the computer while other
members of the household were present. Two or three weeks
after the first incident, Devincentz again digitally
penetrated K.C. while she was in bed. K.C. told Devincentz
that she did not like it, asked him to get away from her, and
threatened to tell her mother. Devincentz gave K.C. a
five-dollar bill and told her not to say anything.
also alleged that when she was around 10 or 12 years old, on
several occasions, Devincentz offered her money to lift up
her shirt. She always refused to do so. She testified that on
one occasion he slapped and grabbed her bottom. K.C.
explained that she did not report Devincentz's actions
out of fear that she "was going to get physically
hurt" and because she did not want to ruin her
mother's relationship with Devincentz.
testified that she and Devincentz argued about her attitude,
disputes with others in the household, her noncompliance with
his requests to do chores, and her failure to do things the
way he wanted. On cross-examination, K.C. acknowledged that
she "was a very angry person," and that she
"would butt heads a lot." K.C. explained that she
clashed with Devincentz because "he was very
demanding," she "didn't like the tone of voice
he would use[, ]" and "because he hurt" her.
She attributed her difficulties with others in the house to
the strain of keeping the abuse secret. K.C. stated that she
did not get along with Joshua because he was
"hardheaded," and he did not like her family. K.C.
wanted to move back to Pennsylvania and live with her father.
K.C. explained that she did not disclose the abuse earlier
because she was afraid of Devincentz and Joshua. She stated
that Joshua "posed a threat" to her, but that
"nobody threatened [her]." Joshua would
"scream at her and [get] in [her]
the State rested, defense counsel called Joshua. The State
objected because defense counsel had not provided prior
notice of the witnesses he planned to call and refused to
proffer the subject matter of their testimony. Defense
counsel contended that the State received notice because both
witnesses were issued subpoenas. The State explained that it
sought a proffer "because if these witnesses are
character witnesses, this may open the door for impeachment
purposes." The trial judge overruled the State's
objection and permitted the defense to call its witnesses.
testified consistently with K.C. about the composition of the
Devincentz household. He explained that K.C. "never
really liked [Devincentz]," she "didn't like
[Devincentz's] rules . . . [and s]he wanted to be able to
do whatever she wanted . . . ." Joshua witnessed
arguments between Devincentz and K.C. Defense counsel
attempted to elicit testimony about an argument that occurred
after K.C. stole a cell phone. The State objected on the
grounds of relevance. Defense counsel proffered that Joshua
witnessed the argument and that "[i]t goes to
motive." The trial judge ruled that Joshua could testify
about the argument, but not about K.C.'s alleged theft
because he lacked first-hand knowledge. The following
[Defense Counsel]: I asked you a question
about the cell phone situation. Without characterizing how
that came up, as a result of that argument, what occurred?
[Joshua]: [K.C.] was unhappy with
[Devincentz]'s decision on the argument. And once it was
resolved by a third party[, K.C.] was yelling and
screaming and saying things that she could do that would get
him in trouble.
[Prosecutor 1]: Objection.
[Prosecutor 2]: Objection.
The Court: Sustained.
[Defense Counsel]: Now, were those things
that you heard?
(Emphasis added). Defense counsel did not make a proffer
after the trial judge sustained the objection.
testified that he never saw anyone using the family computer
to look at pornographic material and never saw such material
stored on the computer. Defense counsel then asked about
K.C.'s relationships with other family members.
[Defense Counsel]: Now, would it be fair to
say that [K.C.] had problems not only with [Devincentz, ] but
with other people in the family?
[Defense Counsel]: Would you describe what
you mean by that?
[Joshua]: [K.C.] had a problem with her
mouth. [K.C.] would say things to people, about people, and
then she would like to argue with you. And she would
not tell the truth about certain things.
[The State]: Objection.
The Court: I'll sustain that. But [K.C.]
would argue with people, right?
The Court: Okay.
[Joshua]: And [K.C.] would give her side[, ]
and then there would be the other person's side.
[Defense Counsel]: I have nothing further,
jury found Devincentz guilty of sexual abuse of a minor and
second-degree assault, but acquitted him of the charge of a
continuing course of conduct against a child. The trial court
sentenced him to 25 years in prison for the sexual abuse of a
minor, and a consecutive 10 years for second-degree
assault. Devincentz appealed. In an unreported
decision, the Court of Special Appeals affirmed his
conviction. See Devincentz v. State, No. 1297, Sept.
Term 2016, 2017 WL 4231583 (Md. Ct. Spec. App. Sept. 25,
granted certiorari to resolve the following
1. Whether Devincentz preserved the issues for review.
2. Whether the trial court erred by prohibiting a
witness's testimony regarding the complainant's
3. Whether the trial court erred by prohibiting a
witness's testimony about threats the complainant made
during an argument with Devincentz.
shall answer yes to all three questions.
State raises a recurrent appellate theme-preservation of
issues. An appellate court will not "decide any other
issue unless it plainly appears by the record to have been
raised in or decided by the trial court . . . ." Md.
Rule 8-131(a). The Court of Special Appeals concluded that
Devincentz had not preserved either issue relating to
Joshua's testimony for review because defense counsel did
not make a proffer regarding the relevance or substance of
the excluded testimony. Devincentz, 2017 WL 4231583,
at *3. Devincentz and the State agree that the absence of a
proffer does not bar appellate review when the substance and
relevance of the excluded evidence is apparent from the
context. Devincentz avers that Joshua's testimony and the
circumstances of the trial satisfied these criteria, and the
State disagrees. Maryland Rule 5-103(a)(2) requires that, to
preserve a claim that a trial court erroneously excluded
evidence, the party must be prejudiced by the ruling and
"the substance of the evidence was made known to
the court by offer on the record or was apparent from the
context within which the evidence was offered."
most common method of preserving a claim that the trial court
erred is to proffer the substance and relevance of the
excluded evidence. Merzbacher v. State, 346 Md. 391,
416 (1997); see also Mack v. State, 300 Md. 583, 603
(1984), abrogated on other grounds by Price v.
State, 405 Md. 10 (2008). A proffer makes "the
grounds for a different ruling manifest to the trial court at
a time when the court can consider those grounds and decide
whether to make a different ruling." Peterson v.
State, 444 Md. 105, 124-25 (2015).
proffer is not an absolute requirement for preservation.
Before the Maryland Rules of Evidence were adopted, in
Peregoy v. Western Md. Ry. Co., 202 Md. 203, 209
(1953), we explained that although
ordinarily a proffer is desirable and sometimes indispensable
to indicate the significance of the question and of the
court's action in sustaining the objection, nevertheless,
where the tenor of the questions and the replies they
were designed to elicit is clear, a proffer in the record is
not a necessary prerequisite for a review of the
(Emphasis added). Maryland Rule 5-103(a)(2) retains this
exception by permitting review if "the substance of the
evidence . . . was apparent from the context within which the
evidence was offered."
examined the application of the preservation rule in
Maryland. In Merzbacher, 346 Md. at 416, defense
counsel attempted to elicit testimony from an Archdiocese
official regarding whether any complaints had been filed
against the defendant. Before the official could answer the
question, the State objected, and the trial court sustained
the objection. Merzbacher conceded the lack of proffer on
appeal but insisted that the question elicited an obvious
answer. We were unconvinced because the witness "could
have answered the question in any number of ways," and
it was not evident that the witness's answer would have
been relevant. Id.
in Conyers v. State, 354 Md. 132, 163-64 (1999),
Conyers contended that two of his witnesses should have been
allowed to testify about a State witness's purported
motive for testifying against Conyers, and that they warned
Conyers about the witness's motives. We pointed out that
the trial court sustained the State's objections before
the witnesses could answer and Conyers never established the
substance or the importance of the excluded evidence.
Id. at 164. Despite Conyers's contentions, the
likely answers were not at all "obvious."
Id. His evidentiary presentation was riddled with
defects that rendered the excluded testimony likely
inadmissible, and ultimately, under the circumstances, even
if the exclusion was in error, it was harmless. Id.
Peterson, 444 Md. at 162, we held that defense
counsel did not preserve the issue of whether the state could
question a witness about his expected benefit from his
testimony, when the witness had pending charges in Maryland
and Virginia and had agreed to work as a police informant in
Virginia. The trial court sustained the State's
objections before the witness could answer the questions.
Id. at 131-32. Defense counsel proffered the pending
Virginia charges but nothing else. Id. at 131. We
explained that "the proffer that made defense
counsel's intention clear emerged in pieces and
spurts," and in legal arguments before any witness had
testified and after the witness had concluded his testimony.
Id. at 141. Nor was it apparent that defense counsel
had an adequate foundation to question the witness about an
expected benefit. Id. at 141-42.
Peterson, Conyers, and Merzbacher
do not stand for the proposition that a proffer is mandatory.
Rather, they illustrate when the contents and relevance of
excluded evidence are insufficiently clear to preserve an
issue for appellate review. In Conyers and
Merzbacher, we declined to speculate about the
contents of the excluded testimony. Conyers, 354 Md.
at 164; Merzbacher, 346 Md. at 416. In
Peterson, we observed that defense counsel's
incomplete and drawn out proffer did not make it clear to the
trial court what defense ...