Bowersox v. State

MYLES J. BOWERSOX v. STATE OF MARYLAND

No. 2634

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

December 18, 2017

Circuit Court for Montgomery County

Criminal No. 128780C

UNREPORTED

Wright, Kehoe, Battaglia, Lynne A. (Senior Judge, Specially Assigned), JJ.

Opinion by Wright, 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.

Appellant, Myles J. Bowersox, was indicted in the Circuit Court for Montgomery County, Maryland, and charged with rape in the first and second degrees; sexual offenses in the first, second, third, and fourth degrees; and, first degree burglary home invasion. A jury acquitted appellant of both rape counts, but convicted him on the remaining counts. Appellant was sentenced to life for first degree sexual offense, a consecutive 20 years for second degree sexual offense, a concurrent 10 years for third degree sexual offense, a concurrent 1 year for fourth degree sexual offense, and, a concurrent 25 years for first degree burglary home invasion, for an aggregate sentence of life plus 20 years. Appellant timely appealed and presents the following questions for our review:

1. Did the lower court err in refusing to allow the defense to introduce evidence of an alleged prior assault against the complaining witness?

2. Did the lower court err in allowing the State to introduce evidence that Mr. Bowersox "cannot be excluded as a possible contributor" to Y-STR DNA on a towel in the complaining witness's bedroom?

3. Did the lower court err by instructing jurors that they could find Mr. Bowersox guilty of sexual offense in the first and third degrees if they found that he "threatened or placed [the complaining witness] in reasonable fear that she would be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping?"

4. Did the lower court commit plain error by instructing the jurors that they could find Mr. Bowersox guilty of third degree sexual offense if he made non-consensual sexual contact during a burglary?

5. Did the lower court err in denying a motion for mistrial?

6. Did the lower court err by not merging several of the convictions for sentencing purposes?

For the following reasons, we hold that appellant's sentences for second degree and fourth degree sexual offense merge with his sentences for first degree and third degree sexual offense, respectively, and we shall vacate those sentences. Otherwise, we affirm.

BACKGROUND

On November 16, 2015, at around 9:00 p.m., Ms. B. went to bed in her ground floor apartment located on Dowgate Court in Montgomery County, Maryland.¹ She awoke at around 4:00 a.m. to find a man on top of her. The man pulled her shirt over her face and then lifted her bra and "groped" her breasts with his hands. He also took off her pants and her underwear and put his fingers and his hand inside her vagina.

The man then attempted intercourse. Ms. B. initially could not remember if he put his penis into her vagina. After her memory was refreshed with a prior statement she gave to police, Ms. B. testified that the man's penis did enter her vagina, "a little bit." When she tried to call out to her roommate for help during the assault, the man struck her in the mouth with a closed fist. Ms. B. did not call out again, because she was afraid the man would hit her again. Ms. B. also testified that the man put his penis into her mouth. After he ejaculated into Ms. B.'s mouth, he grabbed a nearby washcloth and wiped her mouth off.

Ms. B. testified that the man then "put a knife to my belly and told me if I told anybody, he'd come back and kill me." After the assault was over, the man fled through the window. Ms. B. testified that the window had been shut, but not locked, when she went to bed. Ms. B. then called the police and also told one of her two roommates about the assault.²

Ms. B. testified that she got a "good look" at her assailant before he lifted her shirt over her face, testifying that she believed he was in his 20's and that she "thought he was Hispanic, but I'm assuming I was wrong because I heard later he was Jewish." Ms. B. concluded her direct examination by testifying that she did not know appellant and that he had never been in her bedroom before November 16, 2015.

Thereafter, during cross-examination, Ms. B. identified appellant as her assailant. Notably, Ms. B. initially agreed with defense counsel's question that she had not seen appellant "before." However, shortly after this question, Ms. B. clarified, in her own words, that she had never seen appellant "before that night." After further questioning concerning whether she originally described her assailant as being Hispanic, Ms. B. maintained that she recognized appellant as being the person she saw the night of the assault. She further testified that, although her shirt was over her head for part of the assault, she "got a good look at him." On redirect examination, Ms. B. again made an in-court identification of appellant.

Appellant's fingerprints matched latent prints left on the interior window molding and exterior side ledge molding for the window into Ms. B.'s apartment. Additionally, as will be further discussed, appellant could not be excluded as a possible contributor to a sample of Y-STR DNA found on a washcloth in the victim's bedroom.

Detective Elizabeth Young, of the Montgomery County Police Special Victims Investigations Division, testified that appellant was arrested on December 2, 2015. After appellant waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966), Detective Young interviewed him at police headquarters. A video recording of the interview was played for the jury. Appellant initially denied that he had ever been in the victim's apartment building. However, after further questioning, appellant replied that he "can't give you a definite answer." Detective Young then informed appellant that police found his fingerprints inside an apartment. When asked why that would be, appellant replied that he did not know. After appellant gave this answer, the interview ended.

There was further evidence that appellant lived with his girlfriend, Molly Knight, in an adjacent building in the same apartment complex as the victim. Knight testified that, on the day before the assault, she picked up appellant at his job at a restaurant in southeast D.C. and drove back to their apartment, arriving around midnight. Knight and appellant got into an argument in the car, and afterwards, appellant decided to remain in the car to "calm down." Knight confirmed that appellant usually kept a large pocketknife, larger than a Swiss Army knife, inside the car.

Knight continued that after the argument, she went to her apartment and fell asleep. Approximately two hours later, Knight discovered appellant was still not in the apartment, so she began trying to contact him. Appellant finally returned to the apartment at around 4:00 a.m.

After he was arrested, Knight and appellant spoke over the telephone. The contents of that conversation were played for the jury. In that phone call, appellant told Knight, "I never touched her, but like, I, like, talked to her a few times[.]" Appellant stated that he met the victim while he was walking to work and asked her how she was and noted that she looked "like a lovely young lady." Appellant recounted that Ms. B. told him she was 64 years old, that she "kept, like jerking around, moving," and that he believed she had "dementia." Appellant told Knight "I never fucking touched her." Appellant also told Knight that the police had found a thumbprint on the windowsill. Appellant stated that "that makes sense because, you know, I hoisted myself . . . up her windowsill, wanting to talk to her, you know."

Appellant also suggested an alibi to Knight, telling her that, after she picked him up on the night in question, the two of them heated up some Chinese food, watched "The Office," and then went to bed. After the tape concluded, Knight testified that she and appellant did not reheat Chinese food or watch television after they got home that night.

We shall include additional detail in the following discussion.

DISCUSSION

I.

Appellant first contends that the circuit court erred in preventing him from eliciting evidence concerning a prior, unrelated sexual assault of the victim from 2009. Appellant argues that the evidence was relevant "to prove that the complaining witness's in-court identification of Mr. Bowersox was based not on her observations from the night in question but her paranoia of Hispanic men as [a] result of the alleged 2009 incident." The State responds that the victim's prior sexual assault in an unrelated case was irrelevant and the court properly exercised its discretion in excluding the evidence.

Prior to jury selection, the State moved in limine to preclude appellant from referencing the victim's prior sexual history. According to the State's motion, Ms. B. was the victim of a sexual assault in 2009 "which was investigated but not charged as the offender remains unknown." Defense counsel responded that he would not elicit her prior sexual history, but that:

At some point in time when she is giving a statement, [Ms. B.] talks about having been raped about six years prior to this. She makes reference to being raped by some Mexicans. She talks about being pursued by them and then she identifies the person that she says she cannot really see that night as being Mexican, without any further descriptors.

Defense counsel continued that Ms. B. described her assailant simply as being "Mexican," and that "she is paranoid of Mexicans from this prior event. So, I am talking about her state of mind that night, waking up from a deep sleep, having this experience in the past." Defense counsel then argued that he should be able to make a...