Ashton S v. State

1

ASHTON S v. STATE

No. 061-2022

Court of Special Appeals of Maryland^[**]

May 4, 2023

Circuit Court for Cecil County Case No. C-07-CR-18-000518

Reed Beachley, Zic, JJ.

OPINION ^[*]

Zic J.

On September 23, 2019, a jury in the Circuit Court for Cecil County found Ashton S.^[1] ("Mr. S."), appellant, guilty of two counts of second-degree attempted rape, sexual abuse of a minor, two counts of third-degree sexual offense, sodomy, two counts of second-degree child abuse, and second-degree assault. Mr. S. was sentenced on February 25, 2022, and he filed this timely appeal.

QUESTIONS PRESENTED

Mr. S presents two questions on appeal:

1. Whether [Mr. S.]'s right to a fair and impartial jury was violated when the circuit court failed to ensure that no jurors were tainted by other jurors expressing their personal bias[.]

2. Whether the trial court erred when it denied [Mr. S.]'s motion for judgment of acquittal[.]

For the reasons that follow, we decline to exercise plain error review for the first question and answer the second question in the negative. Accordingly, we affirm the judgment of the circuit court.

BACKGROUND

In 2016, Monica S. and Ashton S. married. In the same year, following the birth of the couple's son D., Monica^[2] and Mr. S. moved in together and with Monica's four other children, including L. Monica testified that, following a fight between her and Mr. S., Monica moved in with her mother, Linda W., on March 9, 2018, and was granted a protective order against Mr. S. Mr. S. relocated to South Carolina, and the children joined Monica at Ms. W.'s home.

Ms. W. testified that, while Monica and the children were living with her, L. asked to speak with her alone. Ms. W. testified that L. "said that [Mr. S.] was touching him." She clarified, "You mean touching you, hitting you?" L. responded, "Yes, but more than that." Ms. W. testified that, when she prompted him, L. shared additional information about "what [Mr. S.] did to him." Ms. W. testified that she immediately called Monica, and Monica testified that she, in turn, called Child Protective Services ("CPS") and took L. to A.I. Dupont Hospital. The medical examination conducted at the hospital produced a "normal" result, which neither includes nor excludes abuse.

The Department of Social Services ("DSS") assigned Christie Clouser to assess the case. Ms. Clouser was joined by Detective Josh Leffew as part of a joint investigation between DSS and the Elkton Police Department. This investigation commenced on March 16, 2018. On March 19, Detective Leffew interviewed Ms. W., and Ms. Clouser conducted a ChildFirst forensic interview^[3] with L. Ms. Clouser also spoke to Mr. S. on multiple occasions, and he denied all allegations of abuse of his stepchildren. Ms. Clouser testified that Mr. S. told her he was willing to submit to a polygraph examination and that he "wanted to cooperate to get his family back." On March 20, 2018, Detective Leffew reported to the residence where Monica, Mr. S., and the children had lived together, to further investigate the allegations against Mr. S. On the same day, Detective Leffew interviewed Monica and collected articles of L.'s clothing for DNA testing. This DNA testing did not produce a finding of Mr. S.'s DNA. During the investigation, Detective Leffew contacted the Maryland State Apprehension Team, who located Mr. S. in South Carolina.

On April 25, 2018, the Grand Jury for Cecil County issued a thirty-three-count indictment, nineteen counts of which related to allegations of abuse of L.^[4] An arrest warrant was issued on April 26, 2018. Mr. S. was arrested in South Carolina and extradited to Maryland.

On June 6, 2018, Mr. S. pled not guilty to all counts. The jury trial commenced on September 18, 2019. When the State rested its case, Mr. S. moved for a judgment of acquittal. The court granted the motion as to Count 17, perverted practice, but denied the motion on all other counts. After the defense rested its case, Mr. S. renewed his motion for judgment of acquittal. Defense counsel incorporated prior arguments and further argued that the twelve rape-related and sex-offense-related counts (Counts 1 through 6, 8 through 13) must be dismissed because the relevant statute was substantively amended on October 1, 2017, and the State presented insufficient evidence to establish the dates of Mr. S.'s alleged conduct.^[5] The court granted the motion as to the counts for second-degree sex offense (Counts 8 through 13), reasoning that "there [was] no evidence of anything happening prior to" October 1, 2017. The State also entered nolle prosequi for Counts 3 and 6 because the evidence supported only two possible instances of either second-degree rape or attempted second-degree rape.

The remaining counts that went to the jury, therefore, were as follows: two counts of second-degree rape (Counts 1 and 2), attempted second-degree rape (Counts 4 and 5), sexual abuse of a minor (Count 7), two counts of third-degree sexual offense (Counts 14 and 15), sodomy (Count 16), second-degree child abuse (Count 18), and second-degree assault (Count 19). On September 23, 2019, the jury found Mr. S. guilty of all ten of these counts.

After trial, Mr. S. underwent competency evaluations and was found competent, despite defense counsel challenging that finding. Mr. S. also filed various motions, including a Motion for a New Trial. On February 25, 2022, the court heard various arguments, including Mr. S.'s argument on the motion for a new trial. The court denied the motion for a new trial^[6] and proceeded to sentencing on the same day.^[7] The court imposed the following terms of imprisonment:

• Count 1 (second-degree rape) - 20 years' incarceration with all but 15 years suspended

• Count 2 (second-degree rape) - 20 years' incarceration with all but 15 years suspended; consecutive to Count 1

• Counts 4 and 5 (attempted second-degree rape) - merged into Counts 1 and 2

• Count 7 (sexual abuse of a minor) - 20 years' incarceration with all but 10 years suspended; consecutive to Count 2

• Count 14 (third-degree sexual offense) - 4 years' incarceration with all suspended; consecutive to Count 7

• Count 15 (third-degree sexual offense) - 4 years' incarceration with all suspended; consecutive to Count 14

• Count 16 (sodomy) - merged into Count 1 • Count 18 (second-degree child abuse) - 4 years' incarceration with all suspended; consecutive to Count 15

• County 19 (second-degree assault) - merged into Count 18

Mr. S.'s overall sentence was 40 years of incarceration followed by 5 years of supervised probation. Mr. S. timely noted this appeal.

DISCUSSION

I. The Issue of Juror Bias Was Not Preserved for Appellate Review, and We Decline to Exercise Plain Error Review.

Throughout jury selection and trial, defense counsel took issue with various instances of alleged juror misconduct. First, during jury selection, Kristen B., Mr. S.'s character witness, was in the hallway with the jury pool and reported that potential jurors were conversing about the case in a way that suggested bias. Specifically, Ms. B. testified under oath that, during jury selection, a potential juror-later identified as Juror 61-stated, "this trial is such like BS, I wish it was like the old days." She testified that another juror responded, "Yeah, eye for an eye." These statements were made in the presence of other potential jurors. Ms. B. further testified that Juror 61 asked for the defendant's name and then "immediately started typing on his phone." Following Ms. B.'s testimony, the judge individually questioned Juror 61. Juror 61 admitted to speaking with two others in the courthouse but denied researching Mr. S. on his phone. After the judge questioned Juror 61 and advised him not to discuss the case or "look anything up" on his phone, defense counsel declined the opportunity to ask follow-up questions or to object to the judge's line of questioning.

Next, on the day after jury selection, defense counsel raised concerns about another instance of potential juror misconduct following Ms. B.'s additional reports. Again, defense counsel called Ms. B. to testify about her observations. Ms. B. testified that, while she was seated in the hallway, she overheard Juror 79 voicing her displeasure and anger about Mr. S.'s courtroom conduct. According to Ms. B., Juror 79 said, while referring to Mr. S. in the presence of approximately 25 other potential jurors, "quit smiling, I'm going to burn your a**, just give me the evidence and I'll burn your a**." Juror 79 then said, "I mean, he's innocent until proven guilty, but just show me the evidence," and Ms. B. testified that "everyone laughed." Ms. B. then testified that Juror 79 later stated, "kids aren't going to lie about who did that to them, especially over a two-year span." The last comments that Ms. B. testified to overhearing related to capital punishment, when Juror 79 said "very loudly" that "they should bring that back."

Following Ms. B.'s testimony, the judge individually questioned Juror 79. She denied making comments about Mr. S.'s courtroom conduct but admitted to stating that children do not "lie about things that happen to them." After determining that Juror 79 was incapable of remaining impartial and upon defense counsel's request, the judge struck her from the jury and replaced her with the first alternate juror; neither party objected. Furthermore, after striking Juror 79, the judge called in each jury member to ensure that prohibited conversations had not taken place at any time. Each juror testified that prohibited conversations had not occurred. For each juror, after the judge asked a few questions, he asked counsel if they were satisfied with the line of questioning or if they had anything to add....