Black v. State

COLIN SIME BLACK v. STATE OF MARYLAND

No. 1719

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

October 19, 2020

Circuit Court for Montgomery County

Case No. 133390C

UNREPORTED

Graeff, Leahy, Salmon, James P. (Senior Judge, Specially Assigned), JJ.

Opinion by Graeff, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

In March 2017, E.M. met Colin Black, appellant, using the online dating app "Tinder."¹ She went to his apartment, where he subjected E.M. to a non-consensual sexual act. On June 28, 2019, a jury in the Circuit Court for Montgomery County found appellant guilty of a second-degree sex offense. The court sentenced appellant to 20 years' imprisonment, all but 15 years suspended.

On appeal, appellant presents the following issues for this Court's review:

1. Did the circuit court err in permitting C.B. to testify to appellant's sexual actions against her?

2. Did the circuit court abuse its discretion in excluding impeachment evidence against C.B.?

3. Did the circuit court abuse its discretion in admitting evidence of internet searches for "forced anal" found on appellant's computer?

4. Did the circuit court abuse its discretion by striking testimony regarding E.M.'s depression?

5. Did the circuit court err in denying appellant credit for time-served while on GPS monitoring?

For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2017, E.M., a 30-year-old firefighter EMT, met appellant on the online dating application Tinder. They talked online for a few weeks using the messaging function on Tinder and eventually by text message. They agreed to meet for a date at appellant's home in Rockville on the evening of March 24, 2017.

Earlier that afternoon, appellant texted E.M. to ask whether she planned to stay over at his place, and she responded: "Ha ha, no. I won't spend the night. Figured first date we'd get to know each other. See if you actually enjoy my company." Appellant then asked if they could "make out" and "spoon," to which E.M. said: "I think we can manage that." Appellant stated that he was "getting turned on . . . [t]hinking about spooning with your ass pressed against me and my rock hard dick deep inside your pussy." He then messaged: "Whoops, that was TMI. Ha ha." She responded: "Nope, not at all. Sounds pretty amazing actually."

Appellant then asked whether she liked anal intercourse, to which E.M. responded: "LOL, maybe I should set you up with my best friend. You two sound perfect for each other." He responded: "Ha ha, bring her because that would be fun." E.M. then suggested that maybe they should break the plans for the evening because his comments regarding anal intercourse and her friend made her uncomfortable. She stated that it was obvious that he was under the impression that they would be having sex that evening, and "all [she] wanted was to get to know [him]." Appellant asked her to reconsider cancelling and said they could just "spoon" and "drink wine."

E.M. subsequently changed her mind about having sex with appellant, texting that things had changed. She indicated that she was on her way to his apartment, which was approximately two hours from her home.

The text exchange continued while E.M. was driving. E.M. messaged that she was "coming there to get laid" and asked whether he had condoms. Appellant told her that she"never answered [his] anal question," to which E.M. said "no," and she "could put him in contact with someone else for that." He then stated that he hoped she "like[d] it rough," and she said: "[Y]es, I do." He replied that he would "have handcuffs ready." She stated that she hoped he would make it "worth [her] trip," to which appellant again suggested anal intercourse. E.M. told him that was "[n]ot going to happen" for the third time. She then made it clear that this was a "one night stand," stating: "You wanted an escort for the night. Well, you will get one as long as we fuck and then I'm out."

E.M. arrived at appellant's apartment at approximately 8:15 p.m. They sat down on the couch and began watching television. After a few minutes, they began kissing and eventually relocated to his bedroom. In the bedroom, they had consensual vaginal intercourse. Appellant repeatedly attempted to insert his fingers into E.M.'s anal cavity, and she told him to stop each time. Appellant then attempted to introduce handcuffs and a paddle, which E.M. was initially okay with, but then she told him to stop, which he did.

When the consensual sex had concluded, E.M. got up off the bed to get dressed, and appellant came up behind her and threw her face-down on the bed, pinning her in a position from which she could not move. He then forcibly inserted his penis into her anus. She "tried to fight a little bit," but she was unsuccessful, and she began crying and repeatedly asked him to stop. She testified that this non-consensual intercourse "went on for a little while."² Afterwards, while she was getting dressed, she told him that he was "sick," and"something was wrong with him because [she] was crying and telling him to stop and he got off on [her] tears."

E.M. left appellant's apartment at approximately 9:00 p.m., approximately 45 minutes after she arrived. Appellant then texted her, saying: "I got off on your eyes and kiss, not your tears."

E.M. began driving home and called a friend, Megan Callaway. E.M. initially did not want to report the incident, but Ms. Callaway convinced her to call the police. E.M. eventually pulled into a Holiday Inn parking lot and called the police. The police and Ms. Callaway met E.M. at the parking lot, and she provided a brief statement. E.M. then went to the hospital for a SAFE exam. She told the nurse that her assailant had forced her to have anal intercourse.

In September 2017, another victim, C.B., told the police that appellant had forcibly engaged in anal intercourse with her in December 2016. C.B. had been arrested for possession of marijuana, and the police indicated that, if she could give them information about the person from whom she bought the drugs, they would drop the charges. When the police advised C.B. that the information she gave them wasn't "enough," she "broke down" and told them that she had been raped by appellant.³

C.B. testified that she matched with appellant on Tinder in December 2016. They began messaging through the app, but soon exchanged phone numbers and communicated by text message. On December 16, 2016, they met at his apartment. After talking and watching some television in the living room, they began kissing and eventually moved to the bedroom, where they had consensual sex, both vaginal and anal. C.B. eventually told him to stop the anal intercourse, which he did. They also engaged in sexual acts in the bathroom. She described their encounter as "kinky," but she stated that it was "all consensual." C.B. spent the night at his apartment.

C.B. and appellant continued to communicate regularly, and they agreed to meet again on December 31, 2016, New Year's Eve. C.B. went to appellant's apartment at approximately 1:00 p.m. that day. When C.B. arrived, they began having consensual sex. While they were in the bathtub, appellant indicated that he wanted to urinate on C.B. She repeatedly told him no, but he proceeded to do so. Appellant then held C.B. from behind in a seated position and put his fingers down her throat to make her vomit. She testified that, by this time, she was crying and very upset and afraid.

They returned to the living room sofa dressed in towels, where he "flipped [her] over the couch" and forced her to have anal intercourse with him. She repeatedly told him "no" and that he was hurting her, but he did not respond. Afterwards, they remained on the couch, and he ordered Thai food. C.B. testified at trial that, when the food arrived, she wanted to run for the door or ask the delivery man for help, but she was afraid to do so.

After they ate, they went back to the bedroom, where C.B. hoped that appellant would fall asleep so she could get away, but she fell asleep instead. When she awoke, appellant was on top of her again, forcibly inserting his penis into her anus. C.B. then gathered her clothing and left appellant's apartment.

C.B. testified that she did not report the incident because she "wanted to be alone to try to heal," and she previously had accompanied a friend for a SAFE exam and "didn't want to go through it." Although she and appellant texted each other after this encounter, she did not see appellant again. C.B. sent appellant a text on New Year's Day, the day after the second encounter, stating: "[Y]ou heard me say no, you saw me crying, I was in pain, and you didn't stop." Appellant replied: "I'm sorry. I made a mistake. It was unintentional. I didn't know that you felt that way. I was blackout drunk."

On October 20, 2017, appellant was arrested and charged with two counts of second-degree sex offense and one count of second-degree assault for the incidents relating to C.B. and E.M. Following his arrest, a third victim, J.Y., contacted police after seeing the news reports. She stated that appellant had forced her to have anal intercourse after she met him on Tinder in May 2016.⁴ Consequently, the State filed a superseding indictment on March2, 2018, relating to all three victims. Appellant was charged with four counts of second-degree sex offense, two counts of second-degree assault, one count of second-degree rape, and one count of false imprisonment.⁵ On July 6, 2018, the court granted appellant's motion to sever the charges, resulting in a separate trial for each victim.

On June 24-28, 2019, trial took place on the charge of second-degree sex offense against E.M. E.M. and C.B. testified, as set forth supra. Additional...