Circuit Court for Anne Arundel County No. C-02-CR-16-002447
Graeff, Arthur, Sharer, J., Frederick (Senior Judge,
Specially Assigned), JJ.
been charged with, and convicted of, five counts of
possession of child pornography,  Korey Vaugh Hamilton Payne
raises three challenges to rulings of the Circuit Court for
Anne Arundel County.
In his brief, Payne asks:
1. Did the motions court err in denying [his] motion to
suppress his statement?
2. Did the circuit court err, or abuse its discretion, in
admitting other bad acts evidence?
3. As a matter of first impression in Maryland, did the
circuit court err in imposing separate sentences for each of
five images of child pornography where each image was
possessed at the same time and place?
neither error nor abuse of discretion by either the motions
court or the trial court, we affirm the judgments of the
Circuit Court for Anne Arundel County.
our review does not implicate the sufficiency of the evidence
adduced at trial, we need not recite the facts underlying the
charges, other than to provide context for our discussion of
the issues presented. Whitney v. State, 158 Md.App.
519, 524 (2004) (citing Craig v. State, 148 Md.App.
670, 674 n. 1 (2002)). See also, Teixeira v.
State, 213 Md.App. 664, 666 (2013) (quoting
Fitzpatrick v. Robinson, 723 F.3d 624, 628 (6th Cir.
2013)); Washington v State, 190 Md.App. 168, 171
Motion to Suppress
filed a timely motion to suppress a statement he made to
police, in his home, on the day of the execution of a search
warrant. He challenges the voluntariness of the statement,
asserting that he was in custody at the time and that his
rights under Mirandaand its progeny had been violated
when he had unequivocally invoked his right to counsel, but
the police persisted in questioning him thereafter.
suppression court conducted a hearing on April 5, 2017. In
his brief, Payne has included a summary of the testimony
developed at the suppression hearing, which, in its brief,
the State accepts. We reproduce the summary, with occasional
29, 2016, Detective Erick Patterson, of the Anne Arundel
County Police Department, executed a search warrant at
Payne's home in Hanover, Anne Arundel County, where Payne
lived with his mother. The execution of the warrant was in
connection with a child pornography investigation. Patterson
was with ten other officers who were members of the child
abuse unit, the sex offense unit, and the digital forensic
unit. The officers knocked on the door, announced their
presence, and identified themselves as county police officers
with a search warrant for the residence. Payne answered the
door. The officers were dressed in Class C uniforms,
consisting of navy-blue cargo work pants and a polo shirt
displaying a police badge. They wore tactical or ballistic
vests with "Police" on the back of the vests. They
were armed with firearms, but there was no testimony that
guns were ever drawn. All the officers entered the house at
about the same time.
was asked to step outside, where an officer stood with him
while other officers went inside to determine the possibility
of other occupants. Patterson testified that he did not know
if Payne was handcuffed at that time.
finding no one else in the home, Patterson met Payne in the
living room. Payne was not in handcuffs and Patterson did not
see Payne restrained in any way. Patterson identified himself
to Payne and asked if Payne would speak with him. Patterson
testified that he made Payne aware that he was not under
arrest. He asked if Payne would accompany him to an upstairs
bedroom for an interview. Patterson testified that he would
have allowed Payne to leave if he had asked to do so.
female officer, Detective Kristine Mays,  was present for
the interview which lasted for approximately 45 minutes.
According to Patterson, Payne consented to an audio recording
of the interview. Neither Patterson nor Mays drew their
weapons at any time, nor did Patterson raise his voice or
become aggressive during the interview.
testified that he made no promises or threats, nor did he
offer Payne inducements in return for his statement. He did
not detect that Payne was under the influence of any
substance and he did not have concerns about Payne's
mental health. Patterson advised Payne of his Miranda rights.
Payne was not arrested that day and charges were not filed
until October 3, 2016, more than two months later.
Topiwama, Payne's neighbor, testified that, on the day of
the warrant execution, she looked out from her window, and
saw five or six police cars, and officers "run into the
[sic] Korey's house." Her kitchen window faces
Payne's front door. She saw officers taking pictures of
the house before they went to the door. Significantly, she
testified that she saw an officer place Payne in handcuffs.
hearing the testimony and arguments of counsel, the court
held the matter sub curia and issued a Memorandum
Opinion and Order on April 24, 2017, ruling that Payne was
not in custody at the time he talked with police. Therefore,
the court concluded, the question involving the right to
counsel was not implicated.
Memorandum Opinion, the court indicated a thorough review of
the testimony, made findings of fact, to which it applied
appropriate case law, both Maryland and federal, and
concluded that Payne had not met his burden of proving that
he was in custody for purposes of Miranda applicability:
Before the questioning occurred …, the officers asked
the Defendant to go outside while they conducted a search of
his home. At that [time], the Defendant had no obligation to
stay and could have left the scene. Additionally, Detective
Patterson asked the Defendant if he would speak with him, he
was not ordered to do so. Once the Defendant agreed, the
Defendant led the officers to a bedroom on the third floor,
he was not escorted by the Officers or required to comply.
Further, only two officers were present in the bedroom at the
time of questioning; one was a female detective who sat on
the floor, and another was Detective Patterson who sat on a
piece of furniture, not blocking or locking the door.
Although Detective Patterson read the Defendant his
Miranda rights, he testified at the suppression
hearing that he always gives Miranda warnings and he
did not believe the Defendant to be in custody or under
arrest. Additionally, after listening to the recording of the
interview, the conversation was calm, the officers did not
ask leading questions, there were no threats, inducements, or
any promises made to the Defendant, the conversation only
lasted about 45 minutes, and Detective Patterson made it
clear that it was up to Defendant if he wished to stop.
Further, the Defendant was not arrested at or near the time
of the interview. The defendant was not placed under formal
arrest until October 4, 2016, about 3 months after the
When taking all of the factors together, the Defendant did
not prove that he was in custody for purposes of
Miranda applicability. Accordingly, after review of
the evidence presented and consideration of the relevant case
law, the Court finds that Miranda did not apply at
the time of the questioning ….
review a circuit court's denial of a motion to suppress
on "'only the evidence contained in the record of
the suppression hearing.'" Gupta v. State,
452 Md. 103, 129 (2017) (quoting Rush v. State, 403
Md. 68, 82-83 (2008)). "[W]e 'extend great deference
to the findings of the motions court as to first-level
findings of fact and as to the credibility of witnesses,
unless those findings are clearly erroneous.'"
Jones v. State, 213 Md.App. 483, 496 (2013) (quoting
Padilla v. State, 180 Md.App. 210, 218 (2008)). In
our consideration, "we 'review the evidence and the
inferences that may be reasonably drawn in the light most
favorable to the prevailing party,' in this case, the
State." Id. (quoting Bost v. State,
406 Md. 341, 349 (2008)). However, we review the suppression
court's legal conclusions de novo by undertaking
our own "independent constitutional appraisal of the
record by reviewing the law and applying it to the facts
…." found by the suppression court.
Gupta, 452 Md. at 129 (internal quotations and
citation omitted). Moreover, a defendant must show that he
was in custody and subject to interrogation as a condition of
entitlement to the protection of Miranda. Smith
v. State, 186 Md.App. 498, 519-20 (2009).
Accord Moody v. State, 209 Md.App. 366, 380
(2013) (the burden of showing custody and interrogation lies
with the movant).
issue before us is whether Payne established to the
suppression court that he was in custody at the time of the
statement given to police. Payne argues:
Considering the totality of the circumstances in this case,
particularly the entry of eleven officers armed and in
uniform, the searching of the premises, the request to remove
to an upstairs bedroom for an interview with two detectives
and the failure any officer to tell Mr. Payne that he was
free to leave, the circuit court erred in determining that
the interrogation was not a custodial one. Because Mr. Payne
was "in custody" and was questioned, he had the
right to be free from compelled self-incrimination.
support of his argument, Payne refers us to Thompson v.
Keohane, 516 U.S. 99 (1995), wherein the Supreme Court
reiterated that a determination of "in custody"
involves two "discrete inquiries":
[F]irst, what were the circumstances surrounding the
interrogation; and second, given those circumstances, would a
reasonable person have felt he or she was not at liberty to
terminate the interrogation and leave. Once the scene is set
and the players' lines and actions are reconstructed, the
court must apply an objective test to resolve "the
ultimate inquiry": "[was] there a formal arrest or
restraint [of] freedom of movement of the degree associated
with a formal arrest."
516 U.S. at 112 (quoting California v. Beheler, 463
U.S. 1121, 1125 (1983)).
respect, courts have determined factors to be considered in
determining custody including:
"[W]hen and where it occurred, how long it lasted, how
many police were present, what the officers and the defendant
said and did, the presence of actual physical restraint on
the defendant or things equivalent to actual restraint such
as drawn weapons or a guard stationed at the door, and
whether the defendant was being questioned as a suspect or as
a witness. Facts pertaining to events before the
interrogation are also relevant, especially how the defendant
got to the place of questioning whether he came completely on
his own, in response to a police request or escorted by
police officers. Finally, what happened after the
interrogation whether the defendant left freely, was detained
or arrested may assist the court in determining whether the
defendant, as a reasonable person, would have felt free to
break off the questioning."
Owens v. State, 399 Md. 388, 429 (2007) (quoting
Whitfield v. State, 287 Md. 124, 141 (1980)).
uncontroverted testimony of Detective Patterson, relied on by
the suppression court, was that Payne was not restrained,
that he was cooperative, that no weapons were shown or drawn,
that he responded to Patterson's request for an
interview, that he was not coerced or forced to speak, that
no promises or inducements were made, that he was advised
that he was not under arrest, that he would have been
permitted to leave the interview had he so requested, that
the interview lasted about 45 minutes, after which, and after
the search ended, the police left Payne in his home. He was
not formally arrested until after the charges were filed in
not overlook the testimony of Ms. Topiwama, who testified
that she observed Payne, while outside his home, in
handcuffs. The suppression court found her not to be credible
because of inconsistencies in her account of the event,
vis-à-vis the testimony of
Patterson. We do not disturb the hearing court's
credibility assessments unless clearly erroneous.
Payne's burden to prove custody. Smith, 186
Md.App. at 519-20. Payne opted to remain silent at the
suppression hearing; therefore, we have been provided no
contrast to the evidence given by Detective Patterson, upon
which the court reasonably relied.
agree with the reasoning of the suppression court that Payne,
at the time of the interview with, and statement to,
Detectives Patterson and Mays, was not in custody. Because
the circumstances were non-custodial, we need not reach his
contention that he was denied the right to
shall not disturb the suppression court's rulings.
Other Bad Acts Evidence
search conducted by police at Payne's home resulted in
the seizure of several data storage devices, which the State
characterized in its brief as "USB thumbdrives and
ScanDisc cards." Collectively, those devices contained more
than 3, 000 images, of which 527 were identified by the
State's witnesses as either child pornography or child
erotica. Of those images so identified, the State's
Attorney selected five as the basis of the possession
charges. Those five images were found on the same data stick
but depicted five different children. Over objection, the
State's witness, Detective Joshua Williams, described
images stored on other storage devices. Williams was asked:
[THE STATE]: You indicated that there were other things on
the data stick other than child pornography. What, if any,
data did you observe on that thumb drive?
[WITNESS]: Again, it had similar images that had pictures
of the defendant taking selfies. It had some captures of
the defendant in these video chats. It had some pictures of
teen girls. This one also had a video that depicted the
defendant setting up a recording device and masturbating
next to a sleeping woman.
that response that forms the basis of Payne's claim that
the trial court erred in permitting that "other bad
acts" evidence, contrary to Rule 5-404. His trial
counsel argued that the Williams' testimony about the
existence of a video of Payne masturbating next to a sleeping
woman was not relevant to the charges of possession of child
pornography and while characterized as admittedly
"unsavory" and "repulsive" it was
unnecessary to prove the State's case and, therefore,
State responded to defense counsel's prejudice arguments
by asserting that the evidence was admissible under the
identity exception in Rule 5-404(b) because Payne's
defense, in part, was that the pornographic images were the
property of his mother's companion and were not in his
is correct that Rule 5-404 is a rule of relevance, requiring
a finding of special relevance to the crime(s) charged in
order to admit otherwise inadmissible evidence of other bad
acts. See generally Streater v. State, 352 Md. 800
(1999). See also Rules 5-401 through 5-413
(governing "Relevancy and its Limits" for the
admissibility of evidence). Thus, "[e]xcept as otherwise
provided by constitutions, statutes, or [the Maryland Rules],
or by decisional law not inconsistent with these rules, all
relevant evidence is admissible." Rule 5-402.
said "'a bad act is an activity or conduct, not
necessarily criminal, that tends to impugn or reflect
adversely upon one's character, taking into consideration
the facts of the underlying lawsuit.'" Brice v.
State, 225 Md.App. 666, 692 (2015) (quoting
Klauenberg v. State, 355 Md. 528, 549 (1999)).
Because of the significant risks associated with the
admission of such evidence, it is admissible only when the
bad acts evidence "has 'special relevance-that it is
substantially relevant to some contested issue.'"
Smith v. State, 218 Md.App. 689, 710 (2014) (quoting
Wynn v. State, 351 Md. 307, 316 (1998)). Accord
Wilder v. State, 191 Md.App. 319, 343 (2010) (explaining
that "[t]his Rule and 'the common law preclude the
admission of other crimes [or other acts] evidence, unless
the evidence fits within a narrowly circumscribed
exception.'" (quoting Carter v. State, 366
Md. 574, 583 (2001))). Rule 5-404(b) provides the
"special relevancy" exceptions to the limited
admissibility of bad acts evidence, allowing admission of
such evidence for the purpose of proving "motive,
opportunity, intent, preparation, common scheme or plan,
knowledge, identity, or absence of mistake or accident."
See Smith, 218 Md.App. at 710 (citations omitted).
review a trial court's ruling on the admissibility of
other crimes/bad acts evidence by following the
"Faulkner standard," a three-step process:
First, the court determines whether the evidence
falls into one of the recognized exceptions…. This
is not a matter of discretion, and we review that
categorization de novo. Second, if the evidence
falls into a category of exceptions, the court decides by
clear and convincing evidence whether the defendant was
involved in the prior … bad act, and we review that
finding for sufficiency of the evidence. Third, the
court balances the probative value of the evidence against
the danger of unfair prejudice, a determination we review for
abuse of discretion.
Bellard v. State, 229 Md.App. 312, 342-43 (2016)
(emphasis in Bellard) (citing State v.
Faulkner, 314 Md. 630, 634-35 (1989)).
the first prong, the State's justification for the
admissibility of the testimony concerning the masturbation
video is the "identity" exception to the rule. The
State argues that the video having been found in close
proximity to the proscribed images, in Payne's home,
serves to establish his ownership or control of the images
for which he was charged, indeed of all of the storage
devices that were recovered together in the same white box.
In support of its position, the State points to defense
counsel's comments in his opening statement:
[DEFENSE COUNSEL]: … you're going to hear they
found child porn in that house without a doubt. But it
didn't belong to Mr. Korey Payne. And the government
won't prove that it did because it belonged to somebody
You heard the government tell you who lived in that home. It
was Korey Payne, his mother, Gloria Payne, and her
fiancé, Antonio Kohl. You're going to hear
evidence that, in fact, it was not Korey Payne's
pornography. It was somebody else's. It was his
comments, the State argues, placed "the issue of
identity as to the possessor of the child pornography
contained on the storage devices found in the white box
… squarely before the jury[, ]" and that
"'the test of relevance is whether, in conjunction
with all other relevant evidence, the evidence tends to make
the proposition asserted more or less probable.'"
(Quoting Donati v. State, 215 Md.App. 686, 736
denying its relevance, Payne concedes that the masturbation
video constitutes an "act" as contemplated by the
rule, thereby satisfying the ...